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Flashcards in evidence Deck (71)
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FRE 411 liability insurance

evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or wrongfully


when may court admit liability insurance as evidence under FRE 411

may admit this evidence for another purpose such as proving a W's bias or prejudice or proving agency, ownership, or control


FRE 403 excluding relevant evidence for prejudice, confusion, waste of time, or other reasons

court may exclude relevant evidence if PV is SUBSTANTIALLY OUTWEIGHED by a dnager of 1or+ of the following
- unfair prejudice
- confusing the issues
- misleading the jury
- undue delay
- wasting time
- needlessly presenting cumulative evidence


if PV = low & cost = high

argue that cost substantially outweighs PV and vice versa


if PV & costs are EQUAL

admit, presumption for admission


direct evidence

- make credibility determination
- if accepted as genuine or believed to be true, necessarily establishes the point trying to be proved


circumstantial evidence

- evidence about which you have to draw inferences to reach conclusion
- conclusion does not necessarily follow from underlying premises, though they at least support evidence


circumstantial evidence requirements

1. have to believe W &
2. have to infer what W is telling us


relevance v. weight

- weight = how much emphasis do we give to the evidence
- how convincing is it to the jury


relevance v. sufficiency

sufficiency = whether evidence as a whole meets the standard of proof


probative value

- evidence tending to prove existence of evidence is than that fact would be w/out evidence
- doesn't have to be "more probable than not"


FRE 402 general admissibility of relevant evidence

relevant evidence is admissible unless any of the following provides otherwise
- US constitution
- federal statute
- these rules OR
- other rules prescribed by SC


what facts of consequence in litigation (materiality)

- what the substantive law requires you to prove in order to win
- elements of the offense/defense
- evidence doesn't necessarily have to prove the fact, may instead prove a link in chain, link a motive by inference by proving intent


Old Chief balancing test

balance the degrees of PV and unfair prejudice for the evidence in questions and for alternative, relative evidence


FRE 103 preserving a claim of error

requires that objections to evidence be
1. timely &
2. state the specific ground, unless it was apparent from the context


when the court sustains an objection to evidence a party wishes to offer, the party MUST...

place on the record an indication of what the evidence would have been in order to determine whether any error "affects a substantial right of the party"


court "acting on its own motion"

court has authority to act if a party fails to object to testimony that would be inadmissible if an objection were brought


FRE 103(e) plain error

permits the appellate court to take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved


standard for FRE 403 excluding relevant evidence for prejudice, confusion, waste of time, or other reasons

requires appellate court to abuse of discretion standard for reviewing alleged error


character is generally "in issue" and admissible in the following civil actions:

1) defamation
2) fraud or deceit
3) negligent entrustment
4) tortious assault and battery when the ∆ claims he acted in self defense


when is it permissible to lead a W?

- on CE (desirable)
- on DE if W is having difficulty remembering the facts


does FRE 602 need for personal knowledge require that personal knowledge be established before the W testifies to the fact?

no, if W testifies and it is later shown that the "sufficient to support a finding" requirement has not been met, the court may strike the testmony


what may be used to refresh a W's recollection?

there are no evidentiary rules that limit the use of a document (or anything else) to refresh a W's recollection


what is prohibited testimony under FRE 606(b)(1) juror's competency as a W?

- evidence of drunkenness, drug use and dealing, jurors falling asleep are not proper subjects of juror testimony


under 104(a) what do judges decide?

- gatekeeper for conditional relevance
- PV, whether an expert is an expert, relevancy


4 hearsay dangers

1. ambiguity
2. sincerity
3. false memory
4. inaccurate perception



something internal to a person that tells us something about the person's morality


if a prosecutor seeks to CE a character W by inquiring about whether the W has hear about an event inconsistent with the W's character testimony, the prosecutor must...

show the court that it has a good faith belief that the event actually occurred


accepted methods for showing unavailability

Inability because of death or illness
Memory lapse


declarant/witness prior inconsistent statement exemption from hearsay

1) W must now be CE about the prior statement
- must only be CE about the statement not the event giving rise to the statement
2) statement must be inconsistent w/ present testimony
- lack of memory
- not as in great detail
- specific statements inconsistent w/ general statements
3) must have been made during a prior proceeding or deposition
- generally agency or preliminary hearing