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Evidence Flashcards

1
Q

1st Step of Analysis - Relevance

A

Under FRE 401, to establish relevance, the testimony or evidence must bare on the fact of consequence of the litigation thus making the fact of consequence more or less likely

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2
Q

Personal Knowledge

A

Personal Knowledge:
FRE: 602: A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter

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3
Q

Lay Witness Testimony

A

Lay Witnesses: FRE 701: Opinion Testimony by Lay Witness: Opinions are limited to ones that are:
1) rationally based on the witness’s perception (1st hand knowledge)

2) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
3) not based on scientific, technical or other specialized knowledge within the scope of 702

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4
Q

Expert Witness Testimony

A

witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

1) experts knowledge will help the trier of fact to understand the evidence or determine a fact in issue
2) the testimony is based on sufficient facts or data
3) testimony is the product of reliable principal and methods
4) the expert has reliably applied the principles and methods to the facts of the case

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5
Q

Cross Examination

A

Cross-Examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination based on court discretion, unless witness is declared to be hostile, adverse party, identified with adverse party, you can use leading questions.

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6
Q

Redirect Examination

A

limited usually to issues that were brought up for the first time on cross

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7
Q

Who may impeach a witness

A

FRE: 607 any party, including the party that called the witness, may attack the witness’s credibility

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8
Q

To Impeach a Witness

A

1) attack the credibility and Character:
FRE: 608/609: you can attack the character of witness by showing trait of lying.

	2) Conflicting stories/testimony itself, with depositions or earlier statements. 
		FRE: 612: Can’t ask if they are lying now or then

	3) Bias- in favor of a particular party
	4) Perception: can be exaggerated, memories fade,
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9
Q

Settlement Negotiations

A

inadmissible- conduct or statement made during compromise negotiations about the claim except when offered in a criminal case and when negotiations related to a claim of public office in the exercise of its regulatory, investigative or enforcement authority.

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10
Q

Are Judges Bound by Rule of FRE?

A

FRE 104

Judge determines whether something is admissible or not

- Court not bound by rules of evidence
- Burden of Proof: falls on whichever party seeks to rely on the fact at issue.  - Preponderance of evidence, you are responsible for getting it into evidence/admissible. Has the foundation been satisfied by a preponderance of evidence  Judge determines this
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11
Q

Conditionally Relevant Evidence

A

Think Bail Hearing Case

may be admitted either after or before the introduction of sufficient evidence of preliminary facts

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12
Q

What is 403 Relevance Weighing

A

Is the Probative Value Substantially out-weighted by

  1. Unfair Prejudice
  2. Waste of Time
  3. Confusion
  4. Misleading the jury
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13
Q

What is narrative relevance?

A

De George Case - Ship sinking case

parties to litigation have to be given discretion on how to tell their story, judges should not interfere and judges should give the party introducing evidence a chance to tell the story -*thus not many stips

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14
Q

Subsequent Remedial Measure

A

FRE 407 Subsequent Remedial Measures:

-evidence admissible to show control. i.e. To show they own the building.

evidence NOT admissible to show negligence/SPL

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15
Q

Offer of Payment of Medical Expenses

A

Not admissible: evidence that one person paid or offered to pay the medical expenses of another person to prove that the paying person negligently causes the injuries of the paid person

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16
Q

Offers to compromise or plead guilty:

A

Not admissible: Evidence that a party offered to compromise a claim or to plead guilty to a crime, and certain statements made by a party during the course of settlement or plea negotiations, may not be introduced to show that the party’s liability or guilt

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17
Q

Proof of Liability Insurance

A

-Not admissible: liability insurance or not to prove if party was negligent or not

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18
Q

Character Evidence - Trait

A

1) Prohibited Uses: evidence of a persons character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

2) Exceptions for a defendant or victim in a criminal case: the following exceptions apply in a criminal case:
a) a D may offer evidence of the defendant’s pertinent trait and if the evidence is admitted the prosecutor may offer evidence to rebut it.

  1. In Homicide case, P may offer evidence of the alleged victim’s trait for peacefulness to rebute evidence that victim was first aggressor.
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19
Q

Character Evidence - Crimes and Other Wrongs

A

1) Prohibited Uses: Evidence of a crime, wrong or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character

MIAMI COP exception
2) Permitted Uses; Notice in a Criminal Case: This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan knowledge, identity, absence of mistake or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

a) Provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial and

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20
Q

MIAMI COP

A

Exception only applies to criminal Defendant not civil case

Motive

Intent

Absence of Mind

Identity

Common Scheme or Plan

Opportunity

Preparation

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21
Q

404 a

A

can’t introduce if someone has a character trait that infers (propensity) the person is more likely to be in conformity/in accordance with the character trait

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22
Q

404b

A

specific acts, crimes or wrongs is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character

Exception Use MIAMI COP

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23
Q

Can criminal D offer their own character evidence?

A

Yes under 404a2a - D can offer their own character evidence to show conforming condition

P may offer evidence to rebut it.

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24
Q

First Aggressor Character Exception

A

If D offers evidence that victim was first aggressor then P can offer evidence of the victims peacefulness.

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25
Q

How to introduce admissible character evidence

A

On direct - Reputation or Opinion only

On Cross - Specific Instances of Conduct.

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26
Q

Difference between Habit Evidence and Character Evidence

A

suing bus company for crazy bus driver

Is there a habit- No its inadmissible

-Reckless driving is not a habit, it’s a character trait used to show propensity
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27
Q

How to properly impeach a witness

A

A witness’s character for truthfulness or untruthfulness
a) Reputation or Opinion Evidence witness credibility can be attacked or supported by testimony of the witnesses reputation for having a character for truthfulness or untruthfulness or testimony in the form of an opinion about that character.

-evidence of truthful character is admissible only after the wtiness’s character for truthfulness has been attacked

b) Specific instances of conduct: except for criminal conviction, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness.
- the court may on cross examination, allow them to be inquired into if they are probative of the character for truthfulness.

	- the witness - another witness whose character the witness is being cross examined has testified about.
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28
Q

Criminal Conviction to Impeach Greater than 10 years

A

Greater than 10 years since last conviction or confinement

  • (reverse 403) PV substantially outweighs UFPE can you use this evidence to impeach
    • Applies to all witness
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29
Q

Impeachment for Bias

A

reason to suspect there is a reason to favor one side or another- prejudice toward one side

Facts to look for: 

- relationships, family, biz partners, 
- could be bias against- race, sex, religion
- party wronging him in the past
- there is something at stake.
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30
Q

Impeachment for Prior Inconsistent Statements

with Example

A

Applies to both criminal and civil for only impeachment purposes

Story: W saw blue car go through stop sign and hit red car
Witness: Says I was carrying new computer from best buy, when I saw it
D like to cross- 3 days after DOA, W said to friend, I was walking out of Apple and I saw a blue car stop and then accelerate. – then hit other car

	Two inconsistent Statements:  Whats more Probative

	1) car stopped- cast doubt on testimony – more probative of memory issue 
	2) computer store was different.
31
Q

Rehabilitation

A

FRE 608 (a) & (b): reputation and opinion- witness is untruthful- you can introduce evidence of truthfulness

CAN ONLY BOLSTER IF FIRST DOUBT WAS CASTED DURING CORSS

32
Q

Exceptions to Rape Shield Law FRE 412

A

b) Exceptions:
1) Criminal Cases: the court may admit the following evidence in a criminal case
a) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury or other physical evidence

b) Evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and
c) evidence whose exclusion would violate the defendant’s constitutional rights
2) Civil Cases: court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim’s reputation only if the victim has placed it in controversy

33
Q

Hearsay

A

Only Inadmissible if offered for truth of the matter
asserted

802
Declarent
Out of court statement
Offered to prove the truth of the matter asserted

34
Q

Oppositing Party Statement

A

801d2

offered against an opposing party and:

(A) was made by the party in an individual or representative capacity; -

(B) is one the party manifested that it adopted or believed to be true; -

Sub Analysis:

1) was It heard?
2) Did he understand it
3) would objective reasonable person expect a response?
Then he adopted it/ it’s an admission!

(C) was made by a person whom the party authorized to make a statement on the subject; -

(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or

(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

35
Q

Present Sense Impression

A

803 1

Startled by an event.

36
Q

Excited Utterance

A

803 2

Right after startling event, one phone with cops.

37
Q

Then Existing State of Mind

A

803 3

Can be used to show D was going to be in different location during event.

Then existing Mental, Emotional or Physical Conditions: a statement of the declarant’s then-existing state of mind (Motive intent or plan) or emotional, sensory, or physical condition (mental feeling, pain or bodily heath) but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarents will.

- State of Mind
- Physical Condition
- Emotional Condition
- Sensory Condition
38
Q

Statements Made During Medical Exams

A

Patients usually dont lie during medical exams.

Past, Present and their general causes.

39
Q

Recorded Recollection

A

803 5

when a witness has forgotten
relevant information that he put in writing, he may be allowed to read his recorded observation to jury and jury may treat this recored recollection as if it was in court testimony.

40
Q

Business Record Exception

A

803 6
1) made at or near the time the event occurred OR from information transmitted by someone with knowledge.

-By Someone with First Hand Knowledge Or received information transmitted by someone with knowledge.

	a) if record is made by person with personal knowledge, no problem
	b) if obtained by someone else- that person must have first hand knowledge c) It would only be admissible per the exception, if the person transmitting the information is under a business duty to transmit the information

2) Kept in the course of regularly conducted activity of a business, Organization,
3) Regardless of profit
4) Regular practice of business to make such record - Accident reports not Regular conducted business activity (no guarantee of reliability) 
5) testified by custodian or qualified witness or authenticated. 

AND- Burden Shifting

6) Must be trustworthy
41
Q

Public Records Exception to Hearsay

A

803 8 - Public Factual Findings and Opinions

Civil - Admissible

Criminal Against Govt - Applies to against govt.

Criminal Against Def - Not admissible

42
Q

804 Former Testimony Exception

A

(1) Former Testimony is
a) was given as a witness at trial, hearing or lawful depositon, whether given during the current proceeding or a different one

43
Q

Dying Decelerations

A

ONLY IN HOMICIDE CASES OR CIVIL CASES

804(b)(2) Dying Declarations

	1) D is unavailable
	2) D believes his death is imminent
	3) statement concerns cause of imminent death 

	Criminal:			
	-only homicide	 Civil

- No restrictions
	* declarant must be dead
44
Q

Statements Against Interest 804

A

Fine.

In Criminal Cases need corroboration

45
Q

Unavailability by Forfeiture

A

Forfeiture by wrong doing- statements offered against a party that wrongfully caused the declarant’s unavailable

i.e. D killed or had someone kill or make Declarant unavailable

46
Q

RESIDUAL Exception to Hearsay

A

Old Town Newspaper

What is equivalent circumstantial guarantee of trustworthiness?

  • circumstances the statements are reliable-
    - look at circumstances at which the statement was made
47
Q

Prior Inconsistent Statement Admission Substantively

A

) prior inconsistent statement- (not hearsay because used for impeachment) but if witness is testifying and subject to cross examination and gives an PIS and under penalty of perjury at trial, hearing, grand jury hearing, deposition- Now for impeachment and substantively.

48
Q

Confrontation Clause

A

Confrontation Clause: applies in criminal cases, 6th amendment- D has right to confront the witnesses against him Chance to cross examine & jury to see demeanor

Crawford v. Washington: 
	1) D testimonial evidence
or	2)D is unavailable and D had previous opportunity to cross-declarant
	CC will permit the Declarants testimony in.
49
Q

What is Testimonial Hearsay

A

it was not for the purpose of getting evidence but to resolve emergency, Thus Not testimonial

Has to be somewhat formal

50
Q

Lab Tech Confrontation Clause Issue

A

(Bull Coming) –DNA test Tech not available State tried to get equivalent that could show how its ususally done Court said NO- the tech who performed has to be the one who was crossed It was testimony and thus triggered the confrontation

51
Q

Attorney Client Privilege

A

Confidential: if you could reasonable have expectation of not being overheard. You are privileged
-If heard, can assert privilege to preclude 3rd party from disclosing information

NY- transmittal of communication in presence of employee of attorney is still confidential

Communication: what did you intent/assert

For Purpose of Securing Legal Advice: at the time statement was made. 
	*You don’t have to HIRE the attorney
52
Q

Doctor Patient Privilege

A

Physician-Patient Privilege: Remember What court and what law applies

Fed: No Physican/Patient Privilege

NY: Doctors, PT, Chiro, Pediatrists, Dentists, RN and Patients the communication is privilege
	-Heathcare professional can assert the privilege

Analysis:
	-Relationship must exist between them -Information must be obtained during visit, in order to treat / diagnosis with view toward treatment
	- Must be confidential
		ex: hospital, with family, students, etc- circumstantial (no set rule)
			-courts say family members presence is not waived.
		 	-

Waiver:

- Voluntary testimony to communication
- Not making it confidential

PI Cases: If you put physical condition in Issue- You can’t assert privilege but it only applies to revelent medical condition

53
Q

What does Business Records Exception

A

A record of an act, event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

54
Q

Adopted Statement Analysis under 801d2b

A

.Adoptee must have heard/understood statement

b. Have been at liberty to respond
c. Circumstances must have naturally called for a response and
d. Adoptee must have failed to respond
2. Judge decides whether opposing party manifested adoption or belief in truth of thestatement underR 104(a)

55
Q

Then Existing State of Mind

A

A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health) …

56
Q

Line up ID

A

Only valid if person that made the prior line up ID testifies in current proceeding.
801d1c
(C) identifies a person as someone the declarant perceived earlier.

57
Q

Video Surveillance Showing ID and Action Valid

A

No

Under 801A & 801B

(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
(b) Declarant. “Declarant” means the person who made the statement.

58
Q

Can employees hold employees accountable under party oponent statements?

A

Yes! Even without the employee having the authority to speak on behalf of the business.

801d2d
D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or

59
Q

Does the govt need to charge the co conspiractory with a charge to use the hearsay exemption about the other?

A

No - the government need not charge the other conspirator.

60
Q

803 (5)

A

Recorded Recollection

  1. May use evidence peice to refresh witness then they can tesify to that effect. THEY CAN NOT READ IT!!

However, can be read into record of evidence but not made an exhibit by use of the following rule set.
803(5)
If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

61
Q

Bruton Standard

A

Where redaction is not enough to not implicate another party to the crime.

Me and the Blank killed someone.

held that a defendant’s confrontation clause rights are violated when a non-testifying codefendant’s confession naming the defendant as a participant in the crime is introduced at their joint trial, even if the jury is instructed to consider the confession only against the defendant

62
Q

Are Secret Phone call recordings valid as co-conspiriractor Statements

A

Yes - They are

63
Q

6th Amendment Confrontation Clause

A

Only concerned about TESTIMONIAL HEARSAY

Crawford Analysis

64
Q

What is testimonial ?

A

statements that are testimonial:

prior testimony at
a preliminary hearing,
before a grand jury, or at a former trial;

affidavits and depositions;

police
interrogations

65
Q

Residual Catchall for Hearsay Exemption

A

807 (Fire Case in Newspaper)

- If statement equivalent under circumstances guarantees of trustworthiness
- it material
- more probative/necessary
- achieves justice

*opponent could argue, if it wasn’t in statute, it wasn’t intended.

66
Q

Aplogizes Baked in to Settlement Negogiations Admissible?

A

No under 408

Not substantively or for impeachment purposes.

67
Q

Statements made during plea?

A

410

a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

68
Q

Is Plea agreement to hold any inconsistent statement at trial impeachable valid?

A

Yes - Prosecutor and Defendant can make an agreement. based on Common law

69
Q

Prior Conduct of Sexual Assault

A

Is admissible under 413 for any relevant purpose in sexual assault prosecution

70
Q

What can the jury testify about post judgement?

A

Nothing
(2) Exceptions.

A juror may testify about whether:

(A) extraneous prejudicial information was improperly brought to the jury’s attention;

(B) an outside influence was improperly brought to bear on any juror; or

(C) a mistake was made in entering the verdict on the verdict form

71
Q

Rape Shield Exceptions

A

412
FRE 412 Rape Shield: evidence showing victim engaged in sexual behavior or sexual predisposition are inadmissible for any purpose unless exception applies (includes sexual misconduct)

-Exceptions: 	  Criminal Civil -If probative of consent- prior sexual relations with D

-If someone other than the D was source of semen, injury or physical evidence

  • guarantees 14/5th amendment right crim def gets opp (confrontation clause)
  • evidence offered sexual behavior or sexual predisposition can be admitted if its probative value substantially outweigh the damage or harm to any victim of UFPE.

Procedure: motion if intend to offer evidence:

  • file motion describing evidence
  • at least 14 days prior to trail
  • serve motion on all parties
72
Q

Confrontation Clause Exceptions

A

Testimonial statements are inadmissible
unless:
1. Declarant is subject to cross-x at trial
2. Declarant is unavailable for trial and
was subject to prior cross-x
3. Defendant forfeited confrontation right
by wrongdoing
4. Statement is not offered for its truth
5. Statement is admissible as dying
declaration3

73
Q

609

A

Analysis: dealing with +1yr or death, over 10yrs or deceptive crimes.

If D is witness Probative Value Must Substantially Out UFPE

My Evidence (1 decks)

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