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Evidence - Doug Flashcards

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1
Q

101

A

Scope of FRE - Applies to proceedings in US Courts

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2
Q

103

A

Preserving Claim of error:

1) Timely objection 2) Shield Jury 3) Failure to preserve only plain error reversal

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3
Q

105

A

Limiting Instructions: Not admissible against certain parties or for other purposes

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4
Q

401

A

Test for relevance: Tends to make a fact more or less probable and the fact is of consequence

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5
Q

402

A

All relevant evidence is admissible.

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6
Q

403

A

Not admissible if the probative value is substantially outweighed by the danger of unfair prejudice, confusion, waste of time, and/or judge feels like excluding

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7
Q

407

A

Subsequent Remedial Measures not admissible if offered to prove liability or negligence - admissible for ownership, control, feasibility, or blanket assertion

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8
Q

408

A

Compromise offers & negotiations not admissible to prove validity or amount of the claim -

1) Must have matured into a claim and be disputed
2) Cannot be used to impeach a witness testimony through prior inconsistent statement
3) Can be admitted to prove bias/prejudice/negate contention of undue delay/proving effort to obstruct

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9
Q

409

A

Offers to pay medical expenses not admissible when offered to prove liability - does not include other stmts that were made with the offer such as reimbursement of lost wages

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10
Q

410

A

Criminal Plea Bargaining not admissible in subsequent criminal or civil case if offered against the defendant if statement made in criminal case and didnot result in finalized and entered guilty plea:

1) Made in plea discussion with prosecuting atty
2) Through conduit with police

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11
Q

411

A

Evidence of liability insurance not admissible if offered to prove liability/wrongful conduct - may be admitted to show bias, prejudice/ or proving agency, ownership or control

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12
Q

601

A

Competency of Witness - Everyone is competent - in civil cases state law governs

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13
Q

602

A

Personal knowledge - witness may only testify about what they know about personally

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14
Q

603

A

Oath/affirmation - witness must have obligation to be truthful enforceable by perjury

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15
Q

604

A

Interpreters - qualified like expert and take oath

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16
Q

605

A

Judge as witness - presiding judge may not testify as witness/offer commentary or reporting on experiments they have conducted or visits made to a site related to the case

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17
Q

606

A

juror as witness - may not testify before other jurors

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18
Q

611

A

1) Control by court - determine truth/avoid time wasting/protect witness
2) Scope of cross
3) Leading questions only for cross/hostile witness/adverse party

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19
Q

614

A

Court calling/examining witness - Ct may call on own or at parties request and each party may cross/ party may object

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20
Q

615

A

At parties request CT must exclude witness to avoid hearing other witness testimony. Cannot exclude officer/employee of party/person who is essential like expert witness/person authorized by statute

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21
Q

607

A

Impeach - any party may impeach

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22
Q

612

A

Refreshing - after witness state they do not remember, doc written by another may be handed to witness to review and then hand back. Party who does refreshing cannot move document into evidence. If party doing refreshing does not turn it over to opposing party it may be stricken. If do exculpatory it must be given to opposing party b4 trial

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23
Q

612

A

Refreshing - after witness state they do not remember, doc written by another may be handed to witness to review and then hand back. Party who does refreshing cannot move document into evidence. If party doing refreshing does not turn it over to opposing party it may be stricken. If do exculpatory it must be given to opposing party b4 trial

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24
Q

404(a)(1)

A

Character evidence - you cannot use character evidence to prove propensity

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25
404(a)(2)
May use pertinent traits in criminal cases if the defendant opens the door about himself or the victim
26
404(b)(2)
May use character evidence if you can claim that you are using it to prove anything but propensity with a past crime such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident
27
404(b) | 404(c)
May use character and specific instances when a persons character/trait is an essential element of a charge, claim or defense 404(c) homicide case - prosecutor can offer evid of vics trait of peacefulness
28
405(a)
Reputation/Opinion - when evidence of a person character/trait is admissible it may be proved in the form of a opinion or testimony about the person reputation on direct On cross relevant specific instances of persons conduct
29
608(b)(1)
Except for Criminal cases under 609, specific instances of witness conduct not admissible to attack or support truthfulness - On cross, may be inquired into if they are probative
30
609(a)(1)(a)
impeachment of a witness by evidence of a criminal conviction 1)for a crime punishable by death or imprisonment of 1 + the evidence must be admited subject to 403, in a civil case or in a cirminal case in which the witness is not a defednant
31
609(a)(1)(b)
1) felony conviction less than 10 years old 2) witness is a defendant in criminal case 3) must be admitted if the probative value outweighs the prejudicial effect to that defendant (if equal it stays out)
32
609(a)(2)
crimes involving lying – any crime felony or misdemeanor less than 10 years old the element of which required the state prove or the defendant admit making a false statement or dishonest act (inherent in the charge. Perjury, false identification, lying under oath, false statement, counterfeiting, embezzlement, fraud) then admissible
33
609(b)
if more than 10 years then you have to reverse 403 that the probative value supported by specific facts and circumstances substantially outweighs the prejudicial effect and give other side notice
34
609(c)
not admissible if pardoned, annulment or cert of rehab pardon based on finding of innocent – then it is over / / pardon not based on finding of innocent the only away to get it in is if the witness was convicted of another felony after the pardon/annulment/cert of rehab
35
609(d)
Juvenile - only in criminal cases, witness being impeached is NOT defendant, crime if committed by adult is felony, admitting evidence is necessary to determine guilt/innocence
36
406
Habit - Evidence of habit (person or organization) is admissible to show that the person or organization acted in accordance with the habit. Can be admitted regardless of whether corroborated or whether there were eyewitnesses (person can testify about their own habit)
37
106
Rule of completeness - may introduce other portions of writings or recorded statements only - not conversations
38
608(b)(2)
Allows parties to ask character witnesses on cross examination about specific instances of a fact witness behavior
39
613
- using witness’s prior stmts to impeach credibility or rehab in some instances – do not introduce stmts for the content but to show credibility (bolster or contradict (not offered to prove the truth of the matter asserted) -
40
610
Religious Beliefs - not admissible to attack/support witness credibility - not precluded to show bias...
41
412(a)
Prohibited- evidence offered to prove victim engaged in other sexual behavior or to prove victims sexual disposition
42
412(b)(1)
Exceptions - in criminal cases ct may admit specific instances of victims sexual behavior if offered to prove someone else was the source of injry/semen...or specific instances of victims sexual behavior with accused to prove consent or evidence that would violate the def constitutional rights
43
412(b)(2)
Civil - ct may admit evidence of victims sexual behavior/predisposition if probative value substantially outweighs DANGER of harm to victim - may admit victims reputation only if victim has placed it in controversy
44
413
In criminal case where D is accused of SA court may admit prior sexual assaults - Explicit propensity argument
45
415
In civil where D is accused of SA/CM court may admit prior sexual assaults - Explicit propensity argument
46
414
Child Mol - where D is accused of CM court may admit prior sexual assaults - Explicit propensity argument
47
104(a)
Preliminary legal Q - is it relevant no matter what the judge decides then legal questions
48
104(b)
Preliminary factual Q - relevance depends on fact
49
801(d)(1) 2 types of out of court stmts not hearsay | DOES NOT MATTER IF DECLERANT IS UNAVAILABLE OR AVAILABLE
1) declarant/witness prior stmt and is subject to cross is inconsistent, and given under penalty of perjury at trial, hearing, depo.../ may rely on to prove truth of matter asserted but only if witness's credibility has been attacked
50
803(1)
Present sense impression 1) description of event 2) described during or immediately preceding 3) just the facts
51
803(2)
Excited Utterance 1) Speak when startled (sbj) 2) Utterance must be related to startling event 3) No time limit only that declarant is still in excited state
52
803(3)
State of mind 1) then existing state of mind (motive, intent, or plan) or mental feeling, pain, body health 2) not including statement of memory or belief
53
803(4)
Statement for Med treatment/diagnosis 1) made for a reasonably pertinent to medical diagnosis 2) describes medical history/past or present symptoms 3) cannot place blame except in child sex cases
54
803(5)
Recorded Recollection 1) Matter the declarant once knew about 2) made and adopted when fresh in memory 3) accurately reflects witness knowledge 4) if admitted read into evidence
55
803(6)
Business record 1) made at or near the time by someone with knowledge 2) kept in course of regularly conducted activity 3) regular practice of that activity 4) above shown by testimony of custodian 5) opponent does not show that untrustworthy
56
803(8)
Public records 1) sets out offices activities 2) matter observed while under a legal duty to report, other than in a criminal case when observed by LEO 3) Civil case or against the govt in criminal case factual findings from investigator
57
804 (b)(1) DECLERANT UNAVAILABLE
Former testimony that was 1) Declarant unavailable 2) Former testimony given at trial, hearing, or deposition (under oath) 3) Offered against a party (criminal case – must have same defendant) or party whose predecessor in interest (civil cases) had an opportunity and similar motive to develop the testimony by direct, cross or redirect examination
58
804(b)(2)
Dying Declaration 1) Declarant is unavailable 2) In criminal case must be homicide or any death in civil case 3) Declarant must subjectively believe that death is imminent 4) Statements concerns cause or circumstance of declarants death even if s/he doesn’t die
59
804(b)(3)
Statement against interest 1) Dec unavailable 2) against declarants proprietary or pecuniary interest or tents to invalidate the declarants claim or exposes the declarant to civil or criminal liability 3) .Stmt was so against declarants OWN interest when it was made that a reasonable person would not have made the statement unless it was true (context matters)
60
804(b)(6)
Forfeiture 1. Declarant unavailable 2. Opposing party acted wrongfully or acquiesced in wrongful conduct* 3. Wrongful conduct was intended, at least in part, to make the declarant unavailable 4. The wrongful conduct in fact caused the unavailability
61
803(10)
Absence of public record -testimony admitted to prove 1) record/stmt does not exist 2) matter did not occur if public office would generally keep a record if it did
62
803(16)
Ancient documents 1) documents that are 20+ years old 2) authenticity has been established
63
803(17)
Market reports | 1) compilations of info generally relied on by the public or person in particular occupations (stock list, directories)
64
803(18)
Learned Treaties 1) stmt called to the attention of expert on cross or relied upon by the expert on direct 2) established as reliable authority by the experts admission 3) if admitted read to jury, not submitted as exhibit
65
801(d)(2)
Statement by opposing party not hearsay if 1) made by party in individual capacity 2) one the party adopted 3) made by person authorized to make stmts on subject 4) made by party's agent or employee within the scope of that relationship 5) made by party's coconspirator during and in furtherance of the conspiracy (statement does not by itself establish authority

Doug Evidnece (1 decks)

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