Flashcards in Evidence Deck (122):
What must a party do to notify the court of an erroneous ruling?
(2) Offer of proof
When does a party not need to renew an objection?
When the judge makes a definitive ruling. Exception for plain error (obvious + substantial right effected + grounds are reversible).
What is "plain error"?
(1) Error is obvious
(2) A substantial right is affected
(3) the grounds are reversible
What is the rule of completeness? (FRE 106)
Allows a complete statement or otherwise inadmissible portion of a statement to be admitted. Opposing counsel can wait until cross-examination to bring in omitted portion.
What is "judicial notice"?
Court will accept a fact as true without requiring formal proof. Federal rules only address judicial notice of "adjudicative facts," those that relate to the parties and their activities.
When can judicial notice be used? And when is the court required/barred from using it?
Used when taken a source that cannot reasonably be questioned because...
(1) a fact can be accurately and readily determined OR
(2) fact is generally known within the jurisdiction
Court MUST take judicial notice if (1) requested and (2) necessary information is given to the court. Court CANNOT take judicial notice against criminal defendant for the first time on appeal.
What is the effect of judicial notice?
Civil jury = must accept fact as true.
Criminal jury = may or may not accept fact as true.
What is the scope of normal cross-examination?
Limited to the scope of the direct AND questions about credibility.
When is credibility at issue?
Credibility is ALWAYS at issue.
What objections can counsel raise to the "form" of the question?
(1) Leading questions (on a direct examination)
(2) Compound question
(3) Assumes facts not in evidence
(4) Argumentative question
(5) Cumulative/Repetitive question
(6) Question calling for speculation
What individuals cannot be excluded from the courtroom?
(1) A party
(2) an officer or employee who is a designative representative of a corporation
(3) advisory witnesses
What two burdens comprise the burden of proof?
(1) Burden of production = must make a prima facie case
(2) Burden of persuasion = must present legally sufficient evidence
What effect may the destruction of evidence have on a party? What must be shown to trigger this effect?
Raises a rebuttable presumption that the evidence would have been unfavorable to the destroying party.
(1) destroyed intentionally
(2) evidence was relevant to the issue at hand
(3) victim acted with due diligence to prevent/recover evidence
What does it mean for evidence to be "relevant"?
(1) probative = tendency to make a fact more or less likely than it would be without the evidence
(2) material = fact of consequence in determining the action
What is the test for excluding relevant evidence under FRE 403?
Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of:
(1) unfair prejudice
(2) confusing the issues
(3) misleading the jury
(4) undue delay, waste of time, OR
(5) presenting cumulative evidence
What is a "curative admission"?
Judge may admit additional evidence to rebut improperly admitted evidence.
In general, is character evidence admissible to show propensity? (different criminal and civil standards)
CIVIL CASE: Inadmissible to show propensity (conforming conduct), EXCEPT when:
(1) case involves sexual assault and molestation by a ∆, OR
(2) character is an essential element (defamation, negligent hiring, negligent entrustment, child custody, etc.)
CRIMINAL CASE: Inadmissible to show propensity, EXCEPT if
(1) ∆ presents good character evidence inconsistent with the charged crime. Note: "Opens the door" for π.
(2) ∆ presents evidence of a victim's character that is relevant to one of ∆'s defenses. Note: "Opens the door" for π to present good character evidence for victim
What form must character evidence take when a criminal ∆ introduces character evidence (about himself OR a victim)?
(1) Reputation testimony OR
(2) opinion testimony
What form must character evidence take when the prosecution introduces character after the ∆ has "opened the door"? See FRE 405(a)
(3) prior specific acts (only on cross-examination)
For what purposes (other than propensity) can character evidence be used?
(3) absence of Mistake
(5) Common plan
Or any other purpose that is not propensity (lack of accident, preparation, opportunity, etc.)
Prosecution must give prior notice before introducing character evidence in a criminal trial.
Can character evidence be used to impeach a witness?
Yes. Character evidence regarding witness's untruthfulness is always relevant.
When is habit evidence admissible? How do you tell it apart from character evidence?
Admissible to prove conduct in conformity therewith.
Habit = "always," or "every time"
Character evidence = "often" or "frequently"
Can a witness be barred from testifying based on mental incompetence?
No. Mental competence goes to weight, not admissibility.
What two requirements must a lay witness meet to testify?
See FRE 602 and 603
(1) Personal knowledge
(2) Witness must take an oath
May a judge testify in a trial over which she presides?
See FRE 605
No. No objection is required.
When may a juror testify?
See FRE 606
May not testify in front of co-jurors. After trial, NOT about...
(1) statements made during deliberation
(2) effect of anything on a particular juror's vote
(3) the juror's mental processes
MAY testify about:
(1) extraneous prejudicial information
(2) outside improper influence
(3) mistake in entering verdict on the form
May children testify at trial?
Yes. No bright-line rule. Factors:
(2) ability to distinguish truth from falsehood
(3) understanding the importance of telling the truth
Who may impeach a witness? See FRE 607
Any party, including party that called the witness.
Can you attack a witness's character for truthfulness? See FRE 608(a).
Yes by reputation or opinion testimony.
Note: Other party can bolster credibility of witness after it has been attached. But only if attach is on character for truthfulness. Mere impeachment (e.g., showing bias) does not open door for bolstering.
When can a party inquiry into specific instances of conduct regarding a witness's character for truthfulness?
Only on cross examination, and only if conduct is probative of the truthfulness of the witness or a person the witness testified about.
Judge may bar such questioning under FRE 403 or 611 (harassing a witness).
May a witness be cross-examined about previous arrests?
Not generally. Arrests are not wrongdoing (contrast with convictions). But may ask about underlying conduct that lead to an arrest.
Is extrinsic evidence admissible to prove specific instances of conduct regarding a witness's character for truthfulness?
No. If a witness denies a specific instance of conduct, no extrinsic evidence can be admitted to prove it.
BUT extrinsic evidence is available for other grounds of impeachment, like bias.
Can criminal convictions involving dishonesty or false statement be admitted to impeach a witness's character for truthfulness? FRE 609
Yes, must come in if the prior conviction was...
(1) within the last 10 years for AND
(2) a crime of dishonesty or false statement (fraud, perjury, embezzlement, false pretenses, etc.)
Can criminal convictions generally be admitted to impeach a witness's character for truthfulness? FRE 609
Yes, any prior conviction if...
(1) within the last 10 years for AND
(2) a felony (crime punishable imprisonment of more than one year or by death) AND
(3a) If witness is a criminal ∆ = probative value outweighs prejudicial effect to the ∆.
(3b) If normal witness = must be admitted UNLESS probative value is substantially outweighed by prejudicial effect.
When can a juvenile adjudication be admissible to impeach a witness/defendant? FRE 609(d)
Inadmissible to impeach a ∆.
Admissible against non-∆ witness only if:
(1) offered in a criminal case
(2) an adult's conviction for that offense would be admissible to attack the adult's credibility, AND
(3) evidence is necessary to fairly determine guilt or innocence.
What impact does a pending appeal have on the admissibility of a prior conviction? FRE 609(e)
None. But evidence of the pending appeal is also admissible.
May a witness generally be impeached with prior inconsistent statements?
Yes. These prior statements need not be sworn.
Must a prior inconsistent statement be shown to a witness when impeaching that witness? FRE 613
No. But it must be shown to opposing counsel if requested.
May extrinsic evidence be introduced of a witness's prior inconsistent statement?
Yes, but only if the witness is given an opportunity to explain or deny the prior inconsistent statement. Exception tot his for (1) impeaching a hearsay declarant and (2) party opponents. FRE 801(b)(2).
When is bias relevant?
Bias is always relevant to impeach a witness. MBE normally tests bias when (1) witness is employed by a party or (2) witness has cut a deal with the π
When and how may a witness be rehabilitated? FRE 801(d)(1)(B)
After the witness has been impeached. With (1) reputation or opinion testimony OR (2) a prior consistent statement to rebut charges of recent fabrication.
When may a witness's religious beliefs be discussed?
Cannot be used to attack or support witness's credibility. But can be used to show bias or interest.
What is "present recollection refreshed"?
A witness can examine any item to refresh her memory, but the witness may not use the object while testifying. The item is not introduced into evidence, but opposing party can introduce it on cross-exam.
What is "past recollection recorded"?
Witness can read a record to the jury if the memorandum regards a matter about which the witness once had knowledge but now has insufficient recollection of to testify. Memorandum is not admitted as an exhibit by proponent, but opposing counsel can admit it.
When can expert witnesses be used? FRE 702
When scientific, technical, or specialized testimony (reliable) will aid the trier of fact (relevant).
What factors must an expert meet to be qualified to testify? FRE 702
(1) Witness is qualified
(2) Testimony is based on sufficient facts or data
(3) Testimony is product or reliable principles and methods
(4) Expert applied those principles and methods
May an expert opine on the ultimate issue? FRE 704
Yes. Expert may give opinion on an ultimate issue. But expert may NOT opine on whether a criminal defendant had the requisite mental state.
What are the three ways to authenticate evidence? FRE 901
(1) personal knowledge / witness's familiarity with object
(2) distinctive characteristics of object
(3) chain of custody
May reproductions be used as authentic evidence?
Yes. A witness who has personal knowledge must testify that the reproduction accurately depicts what it is claimed to represent.
What standard must x-rays or electrocardiograms meet?
(1) accurate process
(2) machine working properly
(3) qualified operator, AND
(4) chain of custody
What are three common methods of authenticating documentary evidence?
(1) Stipulation of the parties
(2) Eye-witness testimony
(3) Handwriting verification
What is an "ancient document"?
Document is authenticated if it is:
(1) more than 20yo
(2) in a condition unlikely to crate suspicion, AND
(3) found in a place it would likely be found
What is a public record?
Document is authenticated if it is:
(1) recorded or filed in a public office as authorized by law, OR
(2) document is from the office where items of that kind are kept
What is the "reply letter doctrine"?
Document is authenticated if it is:
(1) A letter written in response to an original communication, AND
(2) unlikely that it was forged by original letter's author
What are two ways of performing handwriting verification for authentication purposes?
(1) non-expect who recognizes the handwriting. Non-expert cannot have become familiar for litigation purposes, OR
(2) expert witness the writing to a handwriting sample, OR
(3) jury compares the writing to a handwriting sample
What are the 10 self-authenticating documents?
(1) public documents bearing a seal
(2) certificated copies of public records
(3) official publications issued by a public authority
(4) newspapers or periodicals
(5) trade inscriptions (i.e., a label)
(6) notarized or acknowledged documents
(7) commercial paper
(8) documents declared by federal statute to be authentic
(9) records of regularly conducted business certified by a custodian of those records
(10) attested documents (e.g., wills)
Who may perform voice identification for authentication purposes? A phone conversation?
Any person who has heard the voice at anytime. Makes no difference if the person heard the voice for purposes of litigation.
For telephone conversation:
(1) recognizes the voice
(2) the speaker knew facts that only a particular person would know
(3) caller dialed the number and the speaker identified himself upon answering, OR
(4) caller dialed a business number and scope to a person about regular business.
What does the best evidence rule cover?
Applies to writings, recordings, photographs, x-rays, and videos.
When does the best evidence rule apply?
(1) material terms of the writing are at issue, (e.g., document used as proof of an event; document has a legal effect; OR witness testifies based on facts learned from the writing), OR
(2) a witness relies on a document
Can duplicates be used under the best evidence rule? FRE 1008.
Yes. A duplicate is admissible if produced accurately.
Inadmissible if (1) a genuine question of authenticity arises, OR (2) unfair to admit the duplicate (e.g., it is a partial copy).
Can summaries of an original be used under the best evidence rule?
Yes. Admissible (1) if proponent makes the original available OR (2) by court order.
What does the best evidence rule require? FRE 1001(a)–(c).
Requires that the original document (or a reliable duplicate) be produced in order to prove the contents of a writing. Only applies when (1) the contents of the document are at issue OR (2) a witness relies on the contents of the document while testifying.
Does NOT require (1) presentation of the most persuasive evidence OR (2) admission of a document simply because it exists and covers the same information as testimony.
What is the essential element required to successfully invoke any evidentiary privilege?
Confidentiality. Exceptions: (1) eavesdroppers, (2) party's presence is necessary.
What is spousal immunity?
The spouse of a criminal defendant may not be called as a witness by the π. The spouse cannot be compelled to testify against her spouse in any criminal proceeding.
Applies to testimony about events during or before the marriage.
Expires on divorce/annulment. Can only be asserted during marriage.
Who holds the spousal immunity privilege?
Federal court / majority of states = the testifying spouse
Minority of states = the party
What is the privilege of "confidential marital communication"?
Covers communication made between spouses while they are married, if made in reliance on the "sanctity of marriage."
Applies only to communications during the marriage in both civil and criminal cases.
May be asserted during or after the end of the marriage (no expiration).
What are the three exceptions to the privilege of "confidential marital communication"?
(1) One spouse sues another spouse
(2) crime against the other spouse
(3) crime against children of either spouse
Who holds the privilege of "confidential marital communication"?
When does the attorney-client privilege apply?
(1) communication is intended to be confidential
(2) communication is for legal advice or representation
What information is not covered by the attorney-client privilege?
Anything not for legal advice or representation:
(1) fee arrangement
(2) identity of clients
(3) underlying facts
(4) statements made to an attorney acting in another capacity
For corporate clients, who is covered by the attorney-client privilege?
All control-group communications AND non-control group communications if they are:
(1) within employment duties, AND
(2) for purposes of seeking legal advice for corporation
When does the attorney-client privilege not apply to communications between the attorney and client?
(1) Future crimes
(2) Disputes between attorney and client
(3) Two parties claim the same deceased client
(4) communications between co-clients who are now adverse.
What is the effect of a intentional / unintentional waiver of a privilege?
Intentional = waives privilege, including to related information
Unintentional = no waiver if holder (1) took reasonable steps to prevent disclosure AND (2) took reasonable steps to rectify disclosure.
When does a waiver of privilege in state court proceeding NOT waive in a later federal court proceeding?
(1) action would not have been a waiver in federal courts OR
(2) was not a waiver under state law
When does the physician-patient privilege exist?
Only if recognized by state law and only to communications for medical treatment.
When does the physician-patient not cover communications?
(1) information acquired for reasons other than treatment
(2) patient's physical condition is at issue in the case
(3) communication was made as part of a crime or tort
(4) dispute between patient and physician
(5) patient contractually agreed to waive the privilege
(6) a case brought in federal court and state law does not apply.
When does the psychotherapist-patient privilege not exist?
(1) patient's medical condition is at issue
(2) communication made in court-ordered exam
(3) case is a commitment proceeding against patient
When may opposing counsel comment on a defendant's failure to take the stand after invoking 5th Amendment?
Criminal case = cannot comment
Civil case = may comment
When can a witness be compelled to provide incriminating testimony against himself?
(1) if the government grants him immunity from prosecution. Only "use immunity" is required (protection from use of the compelled statements), in contrast to broader "transactional immunity" (immunity regarding the entire transaction).
(2) if acquittal or conviction removes the danger of incrimination
Is there an accountant-client privilege?
Not at common law. But many jurisdictions recognize it.
Is there a clergy-penitent privilege?
Some jurisdiction's recognize this, but communication must be made as part of seeking spiritual guidance.
Does the government enjoy any privileges?
Yes. Government is privileged from disclosing identity of an informant AND communication of official information.
When is a subsequent remedial measure inadmissible or admissible? FRE 407
Inadmissible to prove: (1) negligence, (2) culpable conduct, (3) defective product or design, or (4) need for a warning.
Admissible for (1) impeachment or (2) proving ownership or control
When is an offer to compromise or negotiate admissible? FRE 408
Inadmissible to prove disputed claim, amount, or for impeachment.
(1) negotiations with governmental agencies are admissible in a later criminal case
(2) to prove bias, prejudice, obstruction, or negate a claim of delay
(3) any evidence discussed during negotiation is admissible
When is evidence of an offer to pay medical expenses admissible? FRE 409
Inadmissible to prove liability for plaintiff's injuries.
But any conduct or statements accompanying the payment are admissible.
When are plea negotiation's admissible? FRE 410
Inadmissible in civil and criminal cases.
Only admissible if (1) fairness dictates or (2) in perjury hearings
Is proof of liability insurance admissible? FRE 411
Inadmissible as evidence of insurance or lack of insurance to show negligence or wrongful conduct.
Admissible if evidence goes to agency, ownership, control, or witness bias/prejudice.
When may a victim's sexual conduct be used in a criminal case?
Rape Shield Laws protect victim's sexual behavior or predisposition from admissibility in cases involving sexual misconduct. Opinion or reputation testimony is always inadmissible.
(1) to prove source of semen or source of injury
(2) prove victim's consent
(3) offered by prosecution
(4) exclusion would violate 6th Amendment rights of the ∆
When may a victim's sexual conduct be used in a civil case?
In case where party is a victim of sexual misconduct, victim's reputation is only admissible if the victim places it in controversy.
Standard = Evidence's probative value must substantially outweigh any unfair prejudice.
Party must give 14 days prior notice.
When may a defendant's sexual conduct be used?
Admissible in a criminal case when ∆ is accused of committing sexual assault, rape, or child molestation. Can be used for propensity.
Court has discretion to bar under FRE 403
Can include arrests and unreported incidents (not just convictions).
No time restriction
Notice requirement: at least 15 days before trial
What is hearsay?
An out-of-court statement offered to prove the truth of the matter asserted.
What statements count as an hearsay?
Any statement that asserts something (not a question). Can be:
(3) non-verbal conduct if it is an assertion
Is a legally operative fact hearsay?
No. Statement is only offered to prove the statement itself was made, not the truth of the matter asserted.
What statements are NOT hearsay? (exclusions under 801(d))
(1) prior inconsistent statements (if made under oath)
(2) prior consistent statements (regardless of whether it is made under oath)
(3) prior statements of identification (if person testifies at present trial)
(4) statements by a party opponent / party admissions (including adoptive omissions, vicarious admissions, and co-conspirator admissions)
When is a statement adopted by a party for purposes of the party opponent exclusion from hearsay?
(1) express adoption
(2) implied adoption. Includes silence if:
(a) party was present, heard, and understood the statement
(b) party had the ability and opportunity to deny it
(c) a reasonable person would have denied the statement
When does vicarious admission apply for purposes of the party opponent exclusion from hearsay?
Statement made by an employee or agent if:
(1) made within scope of employment, AND
(2) during the course of the relationship
OR if the speaker is authorized by opposing party
When does co-conspirator admission apply for purposes of the party opponent exclusion from hearsay?
(1) Statement made by co-conspirator, AND
(2) during and in furtherance of the conspiracy
Statement made after being arrested is NOT admissible.
What are the declarant unavailable exceptions to hearsay? FRE 804
(1) former testimony
(2) dying declaration
(3) statement against interest
(4) statement of personal or family history
(5) forfeiture against wrongdoing
When is a declarant considered "unavailable" for purposes of FRE 804?
(1) invokes privilege
(2) refuses to testify, despite court order
(3) lacks memory of subject matter
(4) dead or illness (mental or physical)
(5) absent and cannot be subpoenaed or made to appear
When is the "former testimony" exception to hearsay available?
(1) declarant is unavailable
(2) former testimony given in trial, hearing, or deposition
(3) opposing party had opportunity and similar motive to develop testimony (no grand jury testimony)
When is the "dying declaration" exception to hearsay available?
(1) declarant is unavailable
(2) statement made when individual believed death was imminent,
(3) statement pertains to the cause or circumstances of her death, AND
(4) Case is a homicide case OR civil case
In federal law, declarant need not actually die.
When is the "statement against interest" exception to hearsay available?
(1) declarant is unavailable
(2) statement is against declarant's pecuniary or proprietary interest OR exposes declarant to civil or criminal liability (if criminal = need corroborating evidence indicating trustworthiness)
(3) a reasonable person would not have made the statement unless he believed it was true
When is the "personal or family history" exception to hearsay available?
(1) declarant is unavailable
(2) statement concerns declarant's own birth, adoption, marriage, divorce, etc.
When is the "forfeiture against wrongdoing" exception to hearsay available?
(1) declarant is unavailable
(2) the statement is offered against a party who is wrongfully responsible for the declarant’s unavailability (e.g., sending someone on a cruise)
What are seven of the declarant-immaterial exceptions to hearsay? FRE 803
(1) present sense impression
(2) excited utterance
(3) statement of mental, emotional, or physical condition
(4) statement for purposes of medical diagnosis or treatment
(5) recorded recollection
(6) business records
(7) public records
(8) Records of religious organizations
(9) Marriage and baptismal certificates
(10) Family records (e.g., family Bible)
(11) Records of documents affecting an interest in property
(12) Ancient documents (authenticated documents in existence at least 20 years)
(13) Market reports
(14) Reputation concerning personal or family history, boundaries, general history, or character
(15) Judgments regarding proof of matters of personal, family, or general history
When is the "present sense impression" exception to hearsay available?
Statement describes an event (1) while it is happening OR (2) immediately after
When is the "excited utterance" exception to hearsay available?
(1) Statement about a startling event or condition
(2) under the stress of excitement caused by the event
When is the "statement of mental, emotional, or physical condition" exception to hearsay available?
Statement of then-existing state of mind, motion, sensation, physical condition, or state of mind.
Can also show: Present intent, motive, or plan for action in conformity therewith. Not admissible for memory, past belief, or past state of mind.
For physical condition = cannot show cause of condition
When is the "statement for medical diagnosis or treatment" exception to hearsay available?
Statement describes declarant's medical history, past or present symptoms, pain, or other sensations.
Admissible if made to physician, attending personnel or other medical personnel. Also covers a declarant other than patient if there is a relationship between the declarant and the patient.
(Remember: physician-patient privilege)
When is the "recorded recollection" exception to hearsay available?
(1) record covers something the witness once knew about
(2) witness made/adopted the record when the matter was fresh in his mind
(3) record accurately reflects witness's knowledge
(4) witness now cannot recall the events well enough to testify
Relates to past recollection recorded.
When is the "business record" exception to hearsay available?
(1) record kept in the course of regularly conducted business activity
(2) making the record was regular practice
(3) record mad at or near the time that someone had knowledge of the subject matter.
(Remember: Custodian or qualified witness must authenticate)
Absence of a record may be used to prove that an event did not occur.
When is the "learned treatise" exception to hearsay available?
(1) expert relied on it during direct or cross-examination
(2) treatise is established as reliable
When is the "residual exception" to hearsay available? FRE 807
(1) equivalent circumstantial guarantees of trust
(2) offered as evidence of a material fact
(3) more probative than any other evidence on the point, AND
(4) admitting the hearsay will best serve purposes of the FRE and interests of justice
Must give reasonable notice to opposing counsel
When does a ∆'s 6th Amendment confrontation clause right trigger?
Covers any testimonial statement given to the police. Bars testimony if the witness is not available for cross-examination. Preference for face-to-face confrontation.
May a ∆ argue against a hearsay rule on Due Process Clause grounds?
Yes. DPC may prevent application of a hearsay rule when the rule would restrict the defendant from his ability to mount a defense.
When does the hearsay exception in 803 allow admissibility of a judgment of prior conviction?
(1) Judgment was entered after trial or a guilty plea;
(2) Conviction punishable by one year or more in prison OR death
(3) The evidence is offered to prove any fact essential to sustain the judgment
What must the identifying person do in order for his prior identification to fit the 801(d) hearsay exception?
Testify at the present trial and be subject to cross-examination concerning the identification.
Does derivative use immunity protect a person from subsequent civil suits?
When can a criminal ∆'s withdrawn guilty plea be used against him?
Cannot be used against him for the crime at issue. However, traffic violations are NOT a crime. These are admissible as proof of negligence in a subsequent civil action, provided a defendant is given an opportunity to explain the plea.
When is a conviction more than 10 years old admissible as a prior bad act for impeachment purposes?
Admissible if (burden on ∆ to disprove)...
(1) probative value substantially outweighs prejudicial effects, AND
(2) proponent gives adverse party reasonable written notice of intent to use the conviction
Can a witness become familiar with a person's voice for the purposes of litigation and to identify the voice on a recording? What about handwriting?
Voice = Yes. Can be prepared for litigation.
Handwriting = No. Cannot be prepared for litigation.