Evidence Flashcards

Question

FEDERAL PRIVILEGES attorney-client privilege >> application for corporate employees [ what types of evidence are admissible ]

Answer 1

general rule = privilege applies to communications by corporate EEs (regardless of their position) when - the communications concern matters w/in scope of employee's corp duties AND - employee is aware that info is being furnished to enable attorney to provide legal advice to the corp

Answer 2

privilege belongs to CLIENT client may waive it by disclosing a significant part of the confidential communication to an unprivileged 3P BUT inadvertent disclosure does not constitute a waiver if the disclosing party - had taken reasonable steps to prevent the disclosure AND - after discovering the disclosure, took reasonable steps to rectify the error

Answer 3

privilege may not be used to shield preexisting documents or the facts themselves privilege survives the client and the representation

Answer 4

several exceptions to the privilege, including: 1. client sought the communication to commit an ongoing or future crime or fraud (regardless of the lawyer’s knowledge) 2. communications with joint clients (but such communications are still privileged as to outsiders) 3. suits between the attorney and client, and suits, disciplinary actions, or crimes arising out of the representation 4. communications were with now-deceased client about disposal of client’s estate 5. client has placed the communication in issue ALSO privilege doesn't does not cover - information incident to the representation AND - observations made by lawyer if these same observations could have been made by 3P (ex = lawyer notices scratch marks on client’s face)

Answer 5

privilege doesn't does not cover information INCIDENT TO THE REPRESENTATION, such as: 1. fact that an attorney-client relationship exists 2. client’s fee arrangement 3. amount paid to lawyer by client 4. client’s identity (except in rare cases)

Answer 6

confidential communication btwn patient and licensed psychiatrist, psychologist, or social worker for purposes of treatment = protected from disclosure during discovery and at trial

Answer 7

patient = holder of the privilege patient may waive it voluntarily or accidentally

Answer 8

there's several exceptions, including: 1. patient places her mental condition in issue 2. court-ordered exams 3. civil commitment hearings ALSO tarasoff warning

Answer 9

in many states, if a patient makes specific threats regarding an identifiable 3P, psychotherapist must notify 3P of threats = failure to do so will result in civil liability

Answer 10

``` a person may - refuse to disclose AND prevent others from disclosing - communication - to a member of the clergy - for purposes of spiritual advice ``` privilege applies to the clergy of any religion and prevents disclosure during discovery and at trial

Answer 11

1. Spousal immunity | 2. Confidential marital communications privilege

Answer 12

a person may not be compelled by the prosecution to testify - about anything (communications, events, etc.) - against her spouse (must be validly married @ time of trial) - in a criminal trial or before a grand jury

Answer 13

privilege does not apply 1. to crimes committed against witness-spouse or children in their custody 2. where the spouses are accused of jointly committing a crime

Answer 14

privilege ends upon divorce | must be validly married @ time of trial

Answer 15

privilege belongs to witness-spouse = witness-spouse may choose to waive it and voluntarily testify against her spouse

Answer 16

``` privilege protects - confidential communications (aka not overheard by anyone else) - btwn spouses - made during a valid marriage ``` applies to both civil and criminal trials NOTE = does not apply to observations made by spouses during the marriage (b/c these aren't confidential communications)

Answer 17

does not apply 1. to crimes committed against the witness-spouse or children in their custody 2. where the spouses are accused of jointly committing a crime

Answer 18

continues after the marriage ends by divorce or the death of a spouse

Answer 19

belongs to BOTH spouses = either spouse may prevent disclosure waived if either spouse discloses a significant part of the confidential communication to 3P

Answer 20

for state law questions (aka diversity issues), federal cts apply state privilege laws for purposes of UBE, you should assume that states recognize same privileges as federal common law PLUS a physician-patient privilege

Answer 21

STATE LAW ONLY confidential communication btwn a patient and a physician for purposes of treatment = protected from disclosure

Answer 22

STATE LAW ONLY patient = the holder of the privilege and patient may waive it voluntarily or accidentally

Answer 23

STATE LAW ONLY privilege does not apply = 1. when patient places his medical condition in issue (ex = sues for personal injuries) 2. for communications btwn a patient and the patient’s testifying expert 3. for communications btwn a patient and a FRCP 35 examiner

Answer 24

- an out-of-court statement - by declarant - that is offered for the truth of the matter asserted IN THE STATEMENT RULE 801(c)

Answer 25

INADMISSIBLE unless exception applies RULE 802

Answer 26

person who made the statement RULE 801(b)

Answer 27

person who will be introducing declarant’s statement into courtroom, either by testifying to it or by introducing the statement in the form of a document RULE 801

Answer 28

a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an ASSERTION

Answer 29

declaration of fact or allegation of fact or opinion

Answer 30

need not be expressed as declarative statements, can also be questions non-verbal conduct can also be a statement if declarant intends conduct to be assertive

Answer 31

1. Context 2. Notice 3. Effect on the Listener 4. Verbal Act 5. Circumstances Evidencing State of Mind

Answer 32

NOT exceptions = FRE excludes 3 types of statements from declarant-witnesses from definition of hearsay A. SWORN TESTIMONY = prior inconsistent statements made under oath at a trial, hearing, other proceeding, or deposition B. CREDIBILITY = prior consistent statements offered to rebut an express or implied charge of recent fabrication or to rehabilitate the declarant’s credibility as W when attacked on other grounds C. ID = out-of-court identification RULE 801(d)(1)(A)-(C)

Answer 33

SWORN TESTIMONY requires the following to be exempt from hearsay rule: 1. the declarant must testify at the proceeding and 2. the opponent must have an opportunity to cross-examine the declarant about the statement

Answer 34

= any statement made or adopted by a party, by someone authorized by the party, by a party’s employee within the scope of employee, or, in criminal cases, by a co- conspirator within the scope and in furtherance of the conspiracy BUT statement need not 1. a confession 2. against interest at the time it is made RULE 801(d)(2)

Answer 35

statement can be verbal or written

Answer 36

statement is offered against an opposing party and either: (D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed (E) was made by the party’s coconspirator during and in furtherance of the conspiracy

Answer 37

1. RULE 803 2. RULE 804 3. RULE 807

Answer 38

23 hearsay exceptions under which evidence can be admitted REGARDLESS of whether the declarant is available to testify in court

Answer 39

4 hearsay exceptions under which evidence can be admitted only when the declarant is UNAVAILABLE to testify in court

Answer 40

additional exception for hearsay that does not meet the criteria in FRE 803 and FRE 804, but that nevertheless has EQUIVALENT circumstantial guarantees of trustworthiness

Answer 41

1. The declarant must make the statement while actually perceiving an event or immediately thereafter (passage of even a few minutes’ time is enough to defeat the exception) 2. The explanation of the event must be a simple description of the observed event or condition 3. The declarant must have personal knowledge of the described event RULE 803(1)

Answer 42

1. There must be a startling event 2. The declarant must perceive the event 3. The event must trigger the “stress of excitement” in the declarant 4. The statement must relate to the startling event itself RULE 803(2)

Answer 43

1. The declarant’s bodily, emotional, or mental condition must be at issue in the case 2. The statement must be a present or contemporaneous statement and NOT a statement of past feelings or conditions 3. The statement must be of the declarant’s state of mind, not someone else’s RULE 803(3)

Answer 44

1. The statement must relate to the cause or condition - statements describing what happened are admissible insofar as they are related to treatment 2. The statement must be made for the purpose of obtaining treatment - whether made directly to medical personnel or even to a family member or caregiver, the key element is the declarant’s understanding that the statement is related to receiving treatment RULE 803(4)

Answer 45

generally, descriptions of the declarant’s 1. emotional state 2. physical appearance 3. behavior 4. condition = suffice to demonstrate the stress of excitement RULE 803(2)

Answer 46

RULE 805 and RULES 803(5)-(7)

Answer 47

hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule RULE 805

Answer 48

4 FOUNDATIONAL REQUIREMENTS 1. W must demonstrate – on the stand – the inability fully and accurately to remember something about which W has actual personal knowledge 2. The advocate’s efforts to refresh W’s recollection under FRE 612 must fail 3. The advocate must establish that W made or adopted a record of the matter while it was still fresh in W’s mind - there is no set time period for determining whether the matter was still fresh in W’s mind 4. The advocate must establish that the record correctly reflects W’s knowledge RULE 803(5)

Answer 49

1. memo or record must have been made or adopted by W when the matter was fresh in his mind and to reflect that knowledge correctly 2. RULE 803(5) applies only to records or memos about which W once had knowledge but now has insufficient recollection to enable him to testify fully and accurately RULE 803(5)

Answer 50

3 FOUNDATIONAL REQUIREMENTS 1. the record must be made and kept in the course of a regularly conducted business activity - and as a corollary to this element, the record must be of the type regularly kept and maintained by that business 2. the record must be made at or near the time of the event recorded therein 3. the record must be made by, or from information transmitted by, a person with knowledge who had a business duty to report the information RULE 803(6)

Answer 51

variously supplied 1. by systematic checking 2. by regularity and continuity which produce habits of precision 3. by actual experience of business in relying upon them 4. by a duty to make an accurate record as part of a continuing job or occupation RULE 803(6)

Answer 52

= failure of a record to mention a matter which would ordinarily be mentioned is satisfactory evidence of its nonexistence RULE 803(7)

Answer 53

2 FOUNDATIONAL REQUIREMENTS 1. the same elements to establish a business record PLUS 2. either a. W must introduce the record that shows absence of entry OR b. W must testify that a diligent search of files revealed no record at all RULE 803(7)

Answer 54

may be admitted under 803(6) on testimony of a “qualified witness” of the incorporating entity alone if certain criteria are met RULE 803(6)

Answer 55

1. the incorporating entity must obviously procure and keep the record in the normal course of its business 2. the entity must show that it relies on the accuracy of the incorporated record in its business 3. there must “other circumstances indicating the trustworthiness of the document” RULE 803(6)

Answer 56

RULES 803(8) and 803(10)

Answer 57

allows one to prove the nonoccurrence or nonexistence of the matter RULE 803(10)

Answer 58

foundational rule for public records RULE 803(8)

Answer 59

1. The record is a certified copy of a public records or report (FRE 902(1)-(4) provides for the self-authentication of public documents and records) 2. The record meets one of the three clauses of FRE 803(8)

Answer 60

(A) the activities of the office or agency (B) matters observed pursuant to duty imposed by law as to which there was a duty to report (C) factual findings made pursuant to authority granted by law

Answer 61

= sets forth the activities of the office or agency

Answer 62

= contains matters observed pursuant to duty imposed by law as to which there was a duty to report

Answer 63

= contains factual findings from an investigation conducted pursuant to legal authority

Answer 64

no additional requirements | = clause A records simply need to be authenticated under Rule 902 to satisfy admissibility requirements

Answer 65

foundation for records of matters observed pursuant to duty imposed by law as to which there was a duty to report includes the following additional elements: 1. the government employee or agents must have firsthand knowledge of the event or condition described in the report 2. the source of the information must be under a legal duty to report the information 3. the public agency must have a legal obligation to prepare and maintain the record

Answer 66

1. the same elements to establish the existence of an actual record in which there is no entry, or the type of record where the information or matter would be recorded if it existed 2. live testimony or a certificate that complies with FRE 902 that diligent search failed to disclose the record, report, statement, or data compilation, or entry RULE 803(10)

Answer 67

in Crawford, SC held that testimonial hearsay cannot be introduced against a criminal defendant unless the Confrontation Clause of the Sixth Amendment has been satisfied

Answer 68

confrontation is designed to weed out fraudulent analysis and incompetent analysis = “Like EWs generally, an analyst’s lack of proper training or deficiency in judgment may be disclosed in cross-examination”

Answer 69

- In Beech Aircraft v. Rainey (1998), SC holds that portions of investigatory reports otherwise admissible under FRE 803(8)(C) are not inadmissible merely because they state a conclusion or opinion - As long as the conclusion is based on a factual investigation and satisfies the Rule’s trustworthiness requirement, it should be admissible along with other portions of the report

Answer 70

1. Reason for unavailability | 2. Clean hands

Answer 71

1. death 2. exercise of a privilege 3. refusal to testify despite a court order 4. forgetfulness (testified to not remembering the subject matter) 5. mental or physical Illness 6. absence because legal process cannot be used to secure the declarant’s testimony RULE 804(a)

Answer 72

1. the declarant is unavailable under FRE 804(a) 2. the former statement was made in an authorized deposition or in another proceeding 3. the former statement was made under oath 4. the party against whom the statement is offered, or a predecessor in interest, had a similar motive to develop the testimony RULE 804(b)(1)

Answer 73

- Several factors influence a decision whether to admit prior testimony - Including 1. Identity of parties 2. Similarity of motives to develop testimony 3. Prior opp to develop testimony RULE 804(b)(1)

Answer 74

1. The declarant is unavailable under Rule 804(a) 2. The statement was made when the declarant believed death was imminent 3. The statement related to the cause or circumstances of what the declarant subjectively believed to be his impending death 4. The statement was based on the declarant’s first-hand knowledge of such causes or circumstances RULE 804(b)(2)

Answer 75

NOT required RULE 804(b)(2)

Answer 76

1. The declarant is unavailable to testify at trial 2. The declarant has first-hand knowledge of the factual matters in the statement 3. The nature of the statement is such that a reasonable person would not have made it unless believing it to be true 4. At the time of utterance, the statement must be contrary to the declarant’s pecuniary, proprietary, or penal interest 5. If the statement is against the declarant’s penal interest, it must be supported by corroborating circumstances that indicate its trustworthiness RULE 804(b)(3)

Answer 77

RULES 806 and 807

Answer 78

1. RULE 608 character for untruthfulness of any W may be attacked by reputation or opinion testimony (once attacked, W’s character for truthfulness may be supported by the same kind of evidence) 2. RULE 609 permits Ws to be impeached by evidence of conviction of a qualifying crime 3. RULE 613 allows impeachment by proof of prior inconsistent statements 4. Ws may be impeached by specific contradiction or by extrinsic proof of bias or motive to misrepresent

Answer 79

1. re: extrinsic proof of inconsistent statements – 806 does away with RULE 613(b)’s requirement that the impeached W be “afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate W thereon” 2. 806 states that if the party against whom the hearsay is offered wishes to call the hearsay declarant to the stand to be impeached, the party is permitted to examine the declarant as if on cross- examination

Answer 80

1. the proponent has provided notice to the adverse party sufficiently in advance of the trial or hearing to enable a fair opportunity for the adverse party to prepare to meet it 2. the statement bears circumstantial guarantees of trustworthiness equivalent to those of the 23 exceptions under RULE 803 and/or the 5 exceptions of RULE 804 3. the statement is offered as proof of a material fact at trial 4. the statement is more probative on the point for which it is being offered than any other evidence that the proponent can procure through reasonable efforts 5. the statement’s admission into evidence serves the general purposes of the FRE and the interests of justice 6. for testimonial statements in criminal cases, the defendant’s confrontation rights have been satisfied

Answer 81

1. the declarant’s motivation to speak truthfully or untruthfully 2. spontaneity of the statement 3. whether the statement was elicited by leading questions 4. time elapse between event and statement 5. whether the declarant was subject to cross-examination at the time the statement was made 6. relationship between declarant and the person to whom the statement was made 7. whether the declarant recanted or reaffirmed the statement 8. whether the statement was recorded or videotaped 9. whether the declarant’s first-hand knowledge is clearly demonstrated 10. comparing the characteristics of the proffered hearsay to the foundational requirements of an existing hearsay exception

Answer 82

statement made anywhere OTHER than W stand at CURRENT trial

Answer 83

1. verbal acts 2. words offered to show effect on person who read/heard statement 3. circumstantial evidence of speaker's state of mind

Answer 84

= legally operative words, have legal significance whether or not spoken truthfully EXAMPLE = overhearing contract offers/acceptance, perjury, fraud, defamation

Answer 85

EXAMPLE in grocery slip 'n' fall case, overheard another customer tell employee there was a broke jar of salsa in aisle 3 = not hearsay to prove notice, hearsay to prove there was actually a broken jar of sale in aisle 3

Answer 86

EXAMPLE mr. rick tells client that he is elvis presley = not hearsay to prove that mr. rick was suffering insane delusion, hearsay to prove mr. rick is, in fact, elvis

Answer 87

TRICK, not nonhearsay ADMISSIBLE HEARSAY EXCEPTION

Answer 88

1. principled categories (not stated in FRE) 2. prior statements by W 3. statements by or attributable to opposing party

Answer 89

any statement made by a party and offered against that party is not hearsay BUT - need not have been against interest @ THE TIME it was made to qualify as an admission - lack of personal knowledge does not necessarily exclude a party’s admission NOTE = may even be in the form of an opinion

Answer 90

- formal judicial admissions (in pleadings, responses to requests to admit, stipulations) = conclusive - informal judicial admissions made during testimony = can be explained - extrajudicial (evidentiary) admissions = not conclusive and can be explained RULE 410

Answer 91

a party may expressly or impliedly adopt someone else’s statement as his own, thus giving rise to an adoptive admission RULE 801(d)(2)

Answer 92

if a party fails to respond to accusatory statements where a reasonable person would have spoken up = his silence may be considered an implied admission AS LONG AS 1. the party must have heard and understood the statement 2. the party must have been physically and mentally capable of denying the statement 3. a reasonable person would have denied the accusation under the same circumstances (NOTE: failure to reply to an accusation or statement made by the police in a criminal case can almost never be used as an implied admission of a criminal act) RULE 801(d)(2)

Answer 93

statements of a party are not receivable against her co-plaintiffs or co-defendants merely because they happen to be joined as parties to the action - if 2 or more parties, admission of a party = receivable against itself - in the absence of authority, not against her co-party RULE 801(d)(2)

Answer 94

the statement of a person authorized by a party to speak on its behalf can be admitted against the party (example = statement by company’s press agent) RULE 801(d)(2)

Answer 95

after a partnership is shown to exist, an admission of one partner, relating to matters within the scope of the partnership business, is binding upon her co-partners since, as to such matters, each partner is deemed the agent of the others RULE 801(d)(2)

Answer 96

SC has held that admissions of one conspirator 1. made to 3P 2. in furtherance of a conspiracy to commit a crime or a civil wrong 3. at a time when the declarant was participating in the conspiracy = are admissible against co-conspirators reasoning = conspiracy is analogous to a partnership AKA “partners in crime”

Answer 97

- ct must make a preliminary determination of the declarant’s relationship with the party against whom the statement is being offered - ct must consider the contents of the offered statement BUT the statement alone is not sufficient to establish the required relationship or authority RULE 801(d)(2)

Answer 98

gov need not demonstrate the unavailability of a non-testifying co-conspirator as a prerequisite to admission of the co-conspirator’s out-of-court statements RULE 801(d)(2)(E)

Answer 99

authentication and identification requires proof that the evidence is what it purports to be

Answer 100

1. Writings 2. Telephone calls and recordings 3. Photos and videos 4. Real evidence 5. Demonstrative and illustrative evidence 6. X-rays and surveillance cameras

Answer 101

1. By extrinsic evidence | 2. Self-authentication

Answer 102

7 ways to authenticate a writing by extrinsic evidence = 1. testimony of W who saw party sign/prepare doc 2. testimony of fact W sufficiently familiar w/ handwriting (familiarity cannot be gained for purposes of testifying) 3. comparison by - handwriting expert (who may acquire familiarity solely for testifying) OR - the fact-finder (who obviously has no prior familiarity w/ handwriting) 4. doc has distinctive characteristics (ex = letterhead) 5. reply doctrine (ex = A mails a letter to B offering to buy widgets + in reply, A receives a letter purportedly from B accepting the offer to buy widgets = B’s letter may be authenticated under the reply doctrine) 6. public documents (if retrieved from proper place of repository) 7. ancient documents (aka those more than 20 years old found in a place where they should be found)

Answer 103

basic principle = certain types of documents (aka those normally reliable) may be admitted into evidence w/o extrinsic evidence 8 types of self-authenticating documents = 1. certified copies of domestic and foreign public records 2. newspapers 3. magazines 4. official gov publications 5. product labels 6. negotiable instruments 7. notarized documents 8. certified business records or data generated by an electronic process, system, or device

Answer 104

judge makes the initial determination of authenticity judge will admit a document into evidence if the proof is "sufficient to support a jury finding of genuineness" jury determines what weight to give it (ex = whether it’s a forgery)

Answer 105

person answering phone or listening to recording recognizes voice voice may have been previously heard in person, by phone, or on tape and may have been heard before or after the call (and solely for purposes of testifying) NOTE = for authentication purposes, W does not have to be absolutely certain of caller’s identity

Answer 106

1. the caller recognizes the voice on the other end (in the same manner as for incoming calls) 2. the caller locates the recipient’s telephone number in the directory and the person on the other end identifies himself 3. the caller locates the recipient’s telephone number in the directory and the conversation relates to the recipient’s business

Answer 107

requires testimony from someone familiar with the scene or item portrayed in the photo/video that the photo/video is an accurate representation NOTE = testimony of actual video-/photographer is unnecessary

Answer 108

1. by testimony as to identity (ex = recognizing the serial number of gun or a distinctive diamond ring) 2. establishing a chain-of-custody

Answer 109

= a visual aid used to explain or illuminate real, documentary, or testimonial evidence (aka not real evidence) Examples = - Charts - Graphs - Maps - Spreadsheets - Films - anatomical models

Answer 110

must show that demonstrative evidence is 1. a substantially accurate representation of real, documentary, or testimonial evidence AND 2. useful to the jury in understanding such evidence NOTE = generally, demonstrative evidence does not go to the jury deliberation room

Answer 111

testimony that the X-Ray equipment or camera is reliable and in good working order (same rule would apply to other equipment, such as a breathalyzer)

Answer 112

requires that certain types of evidence be proved by original documents (or recordings or photos

Answer 113

applies in only 2 situations = 1. proponent is attempting to prove contents of doc that evidences written transaction (ex = contracts, deeds, wills, judgments, divorce decrees) 2. W intends to testify about an event in which his knowledge was acquired solely from - reading a writing or - listening to a recording or - viewing a video or photo (ex = X testifies that A bought a car from B; X’s sole knowledge comes from reading the bill of sale)

Answer 114

if rule requires an original and the proponent cannot produce one, other evidence (like drafts, testimony, etc.) is admissible only if proponent proves that 1. original was lost or destroyed or 2. doc is not obtainable by subpoena or 3. doc is in the other party’s possession or 4. doc relates to a collateral (aka minor) matter or 5. other party admits the contents of doc

Answer 115

there are no "degrees" of secondary evidence under the FRE = once the proponent shows original is unavailable, W's testimony about doc is just as admissible as a prior draft

Answer 116

= includes carbon copies and photocopies (unless there is a genuine question about authenticity) ALSO certified copies of public records are admissible as originals

Answer 117

if party introduces only part of a writing or recording and other parts are necessary to put that part in the proper context, the opponent may force the offering party to introduce those other parts

Answer 118

W must have personal knowledge of the facts or events about which she intends to testify BUT need not have personal knowledge of any direct evidence (ex = W who intends to testify about an admissible hearsay statement need only have personal knowledge of the statement and not the underlying event) typically, W's own statement that she saw or heard the event is sufficient for admissibility

Answer 119

If W testifies that he lacks memory of an event, W’s memory may be refreshed with ANY document (or thing) doc need not be admissible doc is not admissible by the proponent BUT may be admitted in evidence by opposing counsel W may not read from doc, should return it to the attorney before testifying with a refreshed memory if doc does not refresh W’s recollection, W may read it to the jury if doc satisfies the conditions of FRE 803(5) if writing is used to refresh W's memory WHILE W is testifying, an adverse party has RIGHT to inspect writing If writing was used to refresh W's memory BEFORE W testified, adverse party may inspect the writing IF THE CT DECIDES THAT JUSTICE REQUIRES IT

Answer 120

to testify, W must take an oath (religious) or affirmation (non-religious) to tell the truth W may not be impeached for failing to take a religious-based oath

Answer 121

W must have minimal competency to testify = W knows difference between truth and falsity and has minimal mental capacity

Answer 122

cts construe the competency rules LIBERALLY in favor of allowing W to testify relevance and competence = liberally construed privileges = narrowly construed

Answer 123

NO Dead Man’s Act in fed cts for FEDERAL law issues for STATE law issues, fed cts apply the state’s Dead Man’s Act - these acts vary significantly from state to state - generally preclude one party from testifying about oral transaction in civil case if other party is dead or insane - does not apply where the dead party’s testimony is admitted as an exception to the hearsay rule

Answer 124

judges and jurors may not testify in cases over which they preside. juror may testify to impeach a verdict, but only if verdict was tainted by an "external" source, such as a bribe or newspaper report, or as to whether there was a clerical mistake in entering the verdict onto the verdict form. exception = a juror may testify to impeach a verdict by showing that racial animus was a significant motivating factor in the jury’s vote to convict

Answer 125

upon request, judge shall exclude all Ws from courtroom EXCEPT for - parties (or designated rep of a corp or gov party) - crime victims - testifying experts (sometimes)

Answer 126

1. Is EW QUALIFIED to testify on basis of education, experience, training, knowledge, and/or skill? - question for the judge - any of these bases alone is sufficient 2. Is evidence RELEVANT? AKA does evidence assist fact-finder in understanding issues? NOTE = in crim case in which D’s mental state constitutes element of crime/defense, EW may NOT state opinion as to whether D did/didn't have such mental state @ time of offense BUT EW may testify that D suffered from mental disease/defect and can describe characteristics of such condition (just can’t offer a conclusion as to whether condition rendered D incapable of appreciating nature of acts) 3. Is the evidence RELIABLE? AKA has EW applied reliable principles and methods to the facts of the case? - EW’s opinions must be based on REASONABLE DEGREE OF CERTAINTY, not mere conjecture/speculation 4. Is BASIS of EW's testimony PROPER? - EW may base her opinion on inadmissible evidence if it's of type reasonably relied upon by experts in particular field - such inadmissible evidence, however, is not independently admissible and generally may not be made known to jury 5. IMPEACHMENT - in addition to impeachment methods that can be used on fact witnesses, EW may be impeached by 1. evidence of bias (like paid to testify) 2. learned treatises that are read to jury if an expert (either party’s expert will suffice) testifies that treatise is authoritative in the field

Answer 127

type of Qs = no leading Qs (aka Qs that suggest an answer) 4 exceptions = leading questions allowed 1. to refresh W’s recollection 2. to question a difficult or nervous W 3. to question a hostile W, adverse party, or person aligned with an adverse party (like spouse, employee) 4. questions related to preliminary, foundational, or background facts

Answer 128

type of Qs = leading questions are generally permitted 2 exceptions = no leading Qs 1. where attny’s client is called by opposing counsel as an adverse W (and thus attny is cross-examining her own client) 2. cross-examiner has exceeded the scope of direct (but ct has permitted questioning to continue)

Answer 129

in fed ct, scope of cross-exam is limited to 1. subject matters raised on direct examination 2. credibility (aka impeachment) of Ws the court, however, has discretion to allow a cross-examiner to exceed scope of direct examination

Answer 130

fact witness may give an opinion if it is 1. rationally based on W’s perception AND 2. helpful to the jury

Answer 131

1. X was drunk 2. X was about 75 years old 3. X seemed nervous, confused, scared, etc. 4. X was driving about 50 MPH 5. X smelled of alcohol or gasoline 6. X was standing about 20 feet from the intersection

Answer 132

1. X was negligent 2. X is guilty 3. X was at fault 4. X should win 5. X’s product was unreasonably dangerous or defective 6. X’s product was the cause of plaintiff’s injuries

Answer 133

W may be impeached with evidence of bias, interest, or partiality by inquiry on cross-exam AS LONG AS questioning attny has good faith basis to inquire extrinsic evidence is admissible if W denies the existence of the bias

Answer 134

W may be impeached with evidence of lack of capacity by inquiry on cross-exam AS LONG AS questioning attny has good faith basis to inquire extrinsic evidence also admissible to prove W lacked capacity

Answer 135

W may be impeached with her prior inconsistent statements by inquiry on cross-exam (ex = "isn’t it true that after the accident you told the officer that plaintiff’s light was green") if made under oath at a hearing or deposition, the statements are admissible as substantive evidence (otherwise, the statements may be used only to impeach)

Answer 136

foundation = extrinsic evidence of W’s prior inconsistent statement is admissible ONLY IF W is, @ some point in time (before or after impeachment), given opp to explain/deny prior inconsistent statement BUT foundation is not required for 1. statements of a party-opponent or 2. impeaching a hearsay declarant with a prior inconsistent statement extrinsic evidence is admissible unless the prior statement relates to a collateral matter

Answer 137

W may be impeached with his prior convictions by inquiry on cross-examination and/or extrinsic evidence (a certified copy of the record of conviction) as follows: 1. There is an absolute right to impeach with veracity crimes (misdemeanors and felonies, such as perjury, larceny by trick, criminal fraud, counterfeiting, false pretenses, filing false reports, making false statements, and bribery) that are less than 10 years old 2. For all other felonies, they may be used to impeach if their probative value outweighs prejudice to parties; the balance favors exclusion if W is D in a criminal case; for all other Ws, the balance favors use of the conviction 3. Non-veracity misdemeanors may not be used to impeach 4. Convictions more that 10 years old (as measured from the date of conviction or the date of release from prison, whichever is later) are rarely allowed 5. Most juvenile and pardoned convictions are not allowed (but convictions on appeal are allowed)

Answer 138

W may be impeached with evidence of prior bad acts by inquiry on cross-examination if - the act relates to UNTRUTHFULNESS AND - attny has a GOOD FAITH BASIS to believe the act occurred BUT extrinsic evidence is NOT allowed, even if W denies the bad act

Answer 139

W may be impeached by calling a character witness (CW) to testify as to W’s untruthfulness CW may only testify as to W’s reputation for untruthfulness or CW’s opinion as to W’s untruthfulness BUT CW may not testify as to W’s specific instances of untruthfulness

Answer 140

evidence of the truthful character of W is admissible only after W's character for truthfulness has been attacked by 1. character Ws or 2. prior convictions or 3. prior acts of untruthfulness

Answer 141

1. W’s testimony on a particular fact is a material issue in the case 2. where the testimony on a particular fact is significant on the issue of credibility 3. where W volunteers testimony about a subject for which the opposing party would otherwise be precluded from offering evidence

Answer 142

W may not be impeached for his or her religious beliefs (or lack thereof) EX = isn’t it true you don’t believe in God?

Answer 143

the judge determines the admissibility of evidence - in so doing, may consider inadmissible evidence EXCEPT evidence subject to a recognized privilege) in some cases, the admissibility of evidence is contingent upon the admission of other evidence (aka conditional relevance)

Answer 144

a party opposing the admissibility of evidence must make a specific, timely objection for testimonial evidence, the objection must precede W’s answer if Q calls for inadmissible evidence (if Q is not objectionable but W’s answer is, a motion to strike is appropriate) failure to timely object results in a waiver of the objection ct of appeals will not reverse an erroneous evidentiary ruling if the error was harmless

Answer 145

if an objection is sustained, the proponent of the evidence must request an offer of proof (via attny argument, voir dire, etc.) to demonstrate its admissibility

Answer 146

in fed ct, a judge may - call Ws - question Ws - comment to the jury on the evidence

Answer 147

if evidence is admissible for one purpose but not another (or against one party but not another), the court MUST, upon REQUEST, instruct the jury as to the limited use of the evidence

Answer 148

the court accepting a fact as true w/o extrinsic evidence

Answer 149

judicial notice MAY be taken of a fact if it is either 1. generally known within the territorial jurisdiction of the trial court (judge’s own knowledge is insufficient) OR 2. capable of accurate and ready determination by resort to reliable sources (ex = atlas, calendar, dictionary) the court MUST take judicial notice of a fact if the court is supplied with the necessary info to indicate that the fact is not subject to reasonable dispute

Answer 150

any stage = all courts, trial and appellate, may take judicial notice. (NOTE = b/c judicially-noticed facts are not conclusive in criminal cases, appellate courts probably cannot take judicial notice in criminal appeals)

Answer 151

yes or upon motion of a party

Answer 152

CIVIL case = jury will be instructed that the fact is conclusive CRIMINAL case = jury will be instructed that it may, but is not required to, accept the fact as conclusive

Answer 153

presumptions are creatures of substantive law (ex = under contract law, there is a rebuttable presumption that a properly addressed, stamped letter placed in a mailbox was received by the recipient)

Answer 154

for federal issues, once the proponent proves the basic fact (ex = a properly addressed, stamped letter was placed in the mailbox) = the burden of PRODUCTION but NOT PERSUASION shifts to the opponent to disprove the presumed fact (ex = receipt of the letter) if the opponent introduces evidence sufficient to disprove receipt, the presumption BURSTS and the jury will decide the issue as though the presumption never existed (aka the burden of persuasion remains on the proponent)

Answer 155

if the opponent fails to introduce evidence sufficient to disprove the presumed fact = The court will instruct the jury to find for the proponent as to that fact

Answer 156

if the defense fails to introduce evidence sufficient to disprove the presumed fact = the court will instruct the jury that it MAY (but isn't required to) find for the prosecution as to that fact

Answer 157

for state law issues in fed ct, the court uses state presumption law

Answer 158

in some states, if the proponent proves the basic fact | = burden of production AND the burden of persuasion shift to the opponent

Answer 159

in CIVIL cases based on DIVERSITY of citizenship, FRE defers to state law for 1. privileges 2. the Dead Man’s Act 3. presumptions

Evidence Flashcards

(184 cards)