Evidence Flashcards
(164 cards)
1
Q
Limiting Instruction Rule
A
Rule 105. Limiting Evidence That is not Admissible Against Other Parties or for Other Purposes: if the court admits evidence that is admissible against a party or for a purpose- but not against another party or for another purpose- the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.
2
Q
Rule 402. General Admissibility of Relevant Evidence
A
Relevant evidence is admissible unless any of the following provides otherwise:
- The US Constitution
- A federal statute
- These rules; or
- Other rules prescribed by the Supreme Court.
Irrelevant Evidence is not Admissible.
3
Q
What is the test for relevant evidence?
A
Rule 401: Test for Relevant Evidence.
Evidence is relevant if:
(a) It has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.
4
Q
Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons.
A
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:
- unfair prejudice (most common)
- confusing the issues, misleading the jury
- undue delay, wasting time, or needlessly presenting cumulative evidence.
5
Q
Old Chief
A
The presence of a stipulation may affect the balance of unfair prejudice and probative value under 403.
The Old Chief ruling includes 3 significant points related to 403 generally and to the specific effect of stipulations under that rule:
1) The court noted that 403’s balancing test requires the court to evaluate unfair prejudice and probative value in the context of the full evidentiary record. The availability of alternative evidence, including stipulations, affects the 403 balance.
2) The court observed that with respect to most elements of a crime, the prosecution can choose to present detailed evidence rather than accepting a defendant’s offer to stipulate.
3) Court concluded that the calculus differs in the special context of the felon-in-possession statute. The statute itself does not distinguish among previous crimes; conviction of any felony bars the defendant from gun possession. The probative value of introducing evidence of the nature of the previous crimes, therefore, is low.
6
Q
Rule 407. Subsequent Remedial Measures
A
When measures are taken that would have made an earlier injury or harm less likely to occur, the evidence of the subsequent measures is not admissible to prove:
- negligence
- culpable conduct
- a defect in a product or its design; or
- a need for a warning or instruction.
7
Q
Can the court admit evidence of subsequent remedial measures for other purposes than those listed in 407?
A
Yes! For example it can be admitted for:
- impeachment or
- if disputed - proving ownership, control, or the feasibility of precautionary measures.
8
Q
When is a remedial measure subsequent?
A
407 applies only to measures that are taken “after an earlier injury or harm.” Therefore, the rule shields only measures taken after the injury itself.
9
Q
FRE 407
A
Makes subsequent (taken after injury/harm) remedial measures inadmissible… IF offered to prove liability or fault… BUT NOT if offered for any other purpose like impeachment or if disputed, ownership, control, feasibility…
10
Q
FRE 408 Civil Compromise Offers & Negotiations
A
This rule applies only to civil cases. This rule makes statements by any party said while trying to resolve a case and any conduct while they are in some sort of settlement conversation inadmissible to prove liability, impeach, etc.
11
Q
Limitations set by FRE 408
A
1) you have to have a disputed claim… if parties are agreeing about liability and fault then what is there to worry about.
2) has to be some concrete attempts to settle the case and both have to understand that that is what is happening…
3) 408 only applies when the statements and conduct are offered to prove the validity or amount of the claim or dispute the validity or amount of the claim or to impeach by prior inconsistent statement.
12
Q
408 & criminal cases
A
408 states that in most criminal trials, neither the prosecutor nor the accused may introduce evidence from prior civil settlement negotiations for any of the purposes prohibited by 408.
13
Q
408(a)(2): the “Martha Stewart” exception
A
An exception for settlement discussions held during a civil regulatory, investigative, or enforcement action conducted by a gov agency. These are quasi-criminal proceedings and 408 allows parties to introduce evidence from these settlement discussions in a subsequent criminal prosecution.
14
Q
Can you shelter pre-existing evidence by dragging it into a settlement meeting?
A
No!
15
Q
Rule 409 - Medical Expenses
A
Excludes evidence of offers to pay medical expenses, as well as payment of those expenses, when offered to prove liability. This rule encourages individuals and organizations to pay medical expenses for people who have been injured.
16
Q
What under FRE 409 is inadmissible to prove liability for an injury?
A
Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury.
17
Q
What are similar expenses under FRE 409?
A
Courts have construed “similar expenses” to include fees for all kinds of medical treatment and physical rehabilitation, but the rule does not encompass offers to pay lost wages, repair an automobile, or compensate an injured party for other types of economic or property damage.
18
Q
What does Rule 410 do? - Criminal Plea Bargaining
A
This rule excludes plea bargaining evidence. It does not exclude evidence of final guilty pleas entered as the result of plea bargain. A final plea bargain yields a conviction, which is a matter of public record.
19
Q
Does rule 410 exclude evidence from both civil and criminal trials?
A
Yes, while the evidence protected by rule 410 arises in criminal prosecutions, the rule bars admission of this evidence in either civil or criminal trials.
20
Q
What type of party does rule 410 bar admission against?
A
a defendant who made a plea or participated in plea discussions. However, a defendant could still introduce evidence from that process against others.
21
Q
What evidence is inadmissible under rule 410?
A
1) a guilty plea that was later withdrawn
2) a nolo contendere plea (where a defendant allows the court to assume guilty for purposes of sentencing, but does not admit guilt for other purposes).
3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or comparable state procedure
4) 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.
22
Q
Rule 410(b) - exceptions
A
the court may admit a statement described in 410(a)(3) or (4):
(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together or
(2) in a criminal proceeding for perjury or false statement, if the defendant made the statement (a) under oath, (b) on the record, and (c) with counsel present.
23
Q
What are plea discussions? (410)
A
the rule defines “plea discussions” as one that occurs “with an attorney for the prosecuting authority.”
24
Q
How have a majority of courts analyzed ambiguous situations of determining plea discussions under 410?
A
they use a two-tier approach to analyze these situations. Under this approach, a plea discussion occurs if:
(a) the defendant displayed “an actual subjective expectation to negotiate a plea” and
(b) that expectation was “reasonable given the totality of the objective circumstances.”
25
What does Rule 411 deal with?
Liability insurance! Under Rule 411, evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully.
26
Under 411, can the court admit evidence of liability insurance or lack of liability insurance to prove other purposes aside from whether the person acted negligently or otherwise wrongfully?
Yes, the court may admit this evidence for another purpose such as proving a witness's bias or prejudice or proving agency, ownership, or control.
27
Is health care a form of "liability insurance"?
NOPE! disability, life, and many other types of insurance also fall outside the "liability" category.
28
What are examples of liability insurance?
car insurance & medical malpractice insurance
29
What are the differences between plea bargaining and confessing?
plea bargaining happens with prosecutors whereas confessing often can happen with police officers. When talking to police officers, you may accidentally confess... unless the judge decides that it was objectively reasonable that they thought they were plea bargaining, this would be confessing. Statements to police are almost never going to be protected by 410.
30
When does 410 apply?
when the other party tries to bring into a criminal or civil case information that was from a guilty plea that was not finalized.
31
What rules deal with qualifying a witness to testify?
To testify in court, a witness must be (1) competent (Rules 601, 605, and 606); (2) have personal knowledge (602); and (3) take an oath or affirmation (603). If an interpreter is necessary, the rules also provide for qualification of that person (604).
32
What rules deal with how witnesses testify?
FRE 603, 604, 611, 612, 614, and 615.
33
How do lawyer's impeach witnesses?
FRE 607, 608, 609, 610, and 613.
34
What were the common law four "capacities" needed to testify?
1) perception (602)
2) memory (602)
3) narration (611)
4) ability to understand and appreciate the nature and obligation of an oath (basically understand the penalty for lying) (603)
35
Can you be deficient in the four capacities and be deemed competent to stand trial?
you can be deficient but can't completely lack one of these abilities.
36
Rule 601. Competency to Testify in General
Every person is competent to be a witness unless these rules provide otherwise…But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.
37
Can judges who preside over a case testify as a witness?
Rule 605 says that the judge who presides over a case cannot also testify as a witness, because the roles of testifying and presiding are incompatible. This rule also prohibits the judge from offering commentary from the bench that amounts to testimony.
38
Does rule 605 also apply to the judge's law clerks and other employees?
Yes!
39
Can a juror testify as a witness before the other jurors at the trial?
Rule 606 says that at the trial, a juror may not testify as a witness before the other jurors at the trial... if a juror is called to testify, the court must give a party an opportunity to object outside the jury's presence.
40
Do the FREs prohibit a lawyer from testifying on behalf of the party they represent?
No. However, the ethical rules discourage lawyers from testifying in cases in which they represent a party, and lawyers rarely take the stand in cases where they appear as counsel.
41
Does a witness need to have personal knowledge?
Yes! Rule 602 states that 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.
42
May evidence to prove personal knowledge under 602 consistent of the witness's own testimony?
Yes it may.
43
Does 602 apply to expert testimony?
Nope! the final sentence of Rule 602 notes the connection between this rule and Rule 703, which governs opinion testimony by experts.
44
What rule governs oaths and affirmations in federal court?
Rule 603!
45
Rule 603
Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress the duty on the witness's conscience.
46
What happens if a witness refuses to make an oath or affirmation that satisfies 603?
the judge will exclude the witness's testimony.
47
What does rule 604 require of interpreters?
An interpreter must be qualified and must give an oath or affirmation to make a true translation.
48
What is the order in which parties take turns examining a witness at trial?
1) direct examination by the attorney who called the witness
2) cross-examination by the attorney for the other parties
3) redirect examination by the attorney who called the witness, if necessary
4) Recross examination by attorneys for other parties, if necessary
5) additional rounds of redirect and recross (although these are rare).
49
What is the scope of cross-examination under rule 611(b)?
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.
50
What does rule 611(c) state about leading questions?
leading questions should not used on direct examination except as necessary to develop the witness's testimony. Ordinarily, the court should allow leading questions:
(i) on cross-examination; and
(ii) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.
51
What is a leading question?
a question that suggests an answer to the witness; it "leads" the witness to that answer.
52
While 611 restricts the use of leading questions on direct, the rule gives judges discretion to allow leading questions when they are "necessary to develop the witness's testimony." What are the 4 contexts in which judges most often allow attorneys to lead witnesses on direct?
1) to establish pedigree info (educational background and occupation)
2) to direct a witness's attention to a relevant place and time.
3) to help a witness who is hesitant, confused, or has trouble recalling.
4) hostile witnesses (leading questions are appropriate on direct when a party calls a witness who is likely to resist the party's position).
53
How does cross examination differ from direct examination?
1) leading questions are allowed, (however, if the attorney is questioning a friendly witness on cross, the judge may not allow the attorney to use leading questions as freely) and
2) the cross-examiner may ask questions only about issues covered during the direct examination. (however, 611(b) does give judges discretion to expand the scope of cross)
54
Are questions related to impeachment always fair game on cross-examination?
Yes, regardless of the subject matter of the direct testimony or the number of questions the witness was asked on direct.
55
What rule governs the court's calling or examining of a witness?
Rule 614:
(a) the court may call a witness on its own or at a party's request. Each party is entitled to cross-examine the witness.
(b) the court may examine a witness regardless of who calls the witness.
(c) a party may object to the court's calling or examining a witness either at that time or at the next opportunity when the jury is not present.
56
What rule deals with excluding witnesses?
Rule 615 states that "at a party's request, the court must order witnesses excluded so that they cannot hear other witnesses' testimony. Or the court may do so on its own. But this rule does not authorize excluding:
(a) a party who is a natural person.
(b) an officer or employee of a party that is not a natural person, after being designated as a party's representative by its attorney
(c) a person whose presence a party shows to be essential to presenting the party's claim or defense; or
(d) a person authorized by statute to be present.
57
What are the steps to refreshing recollection (FRE 612)
1) witness testifies that they can't recall something
2) ask, "would reviewing x help refresh your recollection?"
3) witness must answer "yes" or at least "maybe."
4) show refreshing item to adverse party.
5) ask to approach witness with item
6) show the item to the witness; "Please review this and let me know when you have finished."
7) ask witness, "does that refresh your recollection?" and then take the item back.
8) if the witness says yes,
9) re-ask the original question and have witness answer.
58
Can you impeach your own witness?
Yes, under FRE 607 both you and opposing counsel can impeach your witness. If you think the other side is going to impeach your witness, it could be good to ask those questions ahead of time so it doesn't look like you've hidden that evidence.
59
Can an adverse party introduce a writing used for refreshment into evidence even if the writing would not otherwise be admissible?
Yes, 612 trumps other rules of evidence when an adverse party invokes it; the rule gives the adverse party the right to introduce the writing for the limited purpose of assessing the witness's credibility.
60
Which FREs create impeachment methods for attorneys?
1) 608 discusses how to attack a witness's character for credibility.
2) 609 describes when a witness's prior criminal convictions are admissible to impeach them; and
3) 610 forbids an attorney from impeaching a witness because of their religious beliefs or opinions.
4) 607 allows parties to impeach any witness including one of their own.
[this list seems incomplete]
61
Under FRE 613, can an attorney surprise witnesses by asking them without warning about prior inconsistent statements?
Yes, FRE 613(a) states that when examining a witness about the witness's prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party's attorney.
62
When is extrinsic evidence of a witness's prior inconsistenct statement admissible under 613(b)?
- if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or
- if justice so requires.
63
4 main questions to ask for FRE 613
1) does the prior inconsistent statement pertain to a matter of consequence or a collateral matter? (of consequence means it is capable of changing the outcome of the proceeding).
2) how can a witness's prior inconsistent statement be brought before the trier of fact?
3) when and how can a witness's prior inconsistent statement be proven by "extrinsic" evidence?
4) What is evidence of the prior inconsistent statement offered to prove?
63
When is evidence of a person's character trait not admissible?
FRE 401(a)(1): evidence of a person's character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character trait.
64
May a court allow questions relating to a witness's character for truthfulness?
FRE 608(b)(1):
1) on cross examination
2) "May" ask a testifying witness
3) about specific instances of conduct?
4) involving untruthfulness/dishonesty
5) must have a good faith belief
6) cannot be proven by extrinsic evidence.
65
Under 608(b)(1) can you disprove a witness that denies something with extrinsic evidence.
NOPE! If a witness denies something, that is it. You cannot disprove them with extrinsic evidence.
66
Which rules are exceptions to 404(a)(1) that pertain solely to testifying witnesses, and only to the character of those witnesses for truthfulness?
FRE 608 and FRE 609
67
Do FRE 608 and 609 apply in both civil and criminal cases?
Yes!
68
4 important points about FRE 608(b)
1) a party may ask a witness about "specific instances of conduct" on cross-examination to suggest that a witness has an untruthful character.
2) Attorneys must limit these questions to actions that are "probative of the witness's character for truthfulness or untruthfulness."
3) The judge has discretion to prevent questions cross-examining a witness about specific acts that reveal untruthful character; rule 608(b) states that the court "may allow" these questions.
4) Rule 608(b) bars proof of these specific instances by extrinsic evidence.
69
What does rule 609 apply to?
FRE 609(a): the rules under 609 apply to attacking a witness's character for truthfulness by evidence of a criminal conviction.
70
When does Rule 609 not apply?
FRE 609 does not apply when a party attempts to introduce a criminal conviction for a reason other than suggesting that a witness has untruthful character.
71
FRE 609(a)(1)
For a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:
- must be admitted, subject to rule 403, (in a civil case or a criminal case in which the witness is not the defendant.)
- must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant.
72
When does 609(b) apply? & when is that evidence admissible?
FRE 609(b) applies if more than 10 years have passed since the witness's conviction or release from confinement for it, whichever is later.
Evidence of the conviction is admissible only if:
1) Its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.
73
What are the 3 special barriers to using convictions that are more than 10 years old?
1) the party seeking to use the conviction must give the adverse party reasonable written notice.
2) the judge must find specific facts and circumstances supporting the conviction's probative value.
3) the judge must determine that the probative value of the conviction "substantially outweighs its prejudicial effect." (reverse 403).
74
When is evidence of a conviction not admissible under 609(c)?
If:
(1) the conviction has been subject of a pardon, annulment, certificate of rehabilitation, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year;
or
(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
75
When is evidence of juvenile adjudication admissible under FRE 609(d)?
If:
(1) it is offered in a criminal case
(2) the adjudication was of a witness other than the defendant
(3) an adult's conviction for that offense would be admissible to attack the adult's credibility; and
(4) admitting the evidence is necessary to fairly determine guilt or innocence.
76
Is a conviction that satisfies 609 admissible even if an appeal is pending?
Yes under 609(e) a conviction is admissible even if an appeal is pending. Evidence of the pendency is also admissible.
77
What does Rule 608(a) allow?
FRE 608(a) allows for character witnesses to be called to either testify to one's untrustworthy character or to testify that they are a truthful person.
78
What are 3 important caveats to FRE 608(a)?
1) the rule only allows general reputation or opinion evidence of character, not testimony giving specific instances of conduct related to a witness's truthfulness or deceit.
2) Just as parties may cross-examine witnesses only on acts related to to their character for truthfulness or untruthfulness, not on other types of acts, character witnesses may only offer reputation or opinion evidence about another witness's character for truthfulness or untruthfulness.
3) a party may introduce evidence of a witness's truthful character only after that character has been attacked.
79
May character witnesses offered under Rule 608(a) give specific examples of the fact witness's untruthful behavior?
Nope! Also- apart from introducing evidence of criminal convictions, the party may not offer extrinsic evidence, such as documents or testimony from other witnesses, to show specific instances of a fact witness's untruthfulness.
80
Once a fact witness's character for truthfulness has been attacked, how may a party introduce evidence to show the witness's truthful character?
There are 3 primary forms of such evidence:
1) explanation of any extenuating circumstances related to specific incidents of untruthfulness raised by the opponent during cross-examination. The party usually elicits these details from the fact witness on redirect examination.
2) Explanation of any extenuating circumstances related to prior convictions. These facts are usually elicited on redirect.
3) Introduction of reputation or opinion evidence suggesting a character for truthfulness. The party offers this testimony through a rebuttal character witness.
81
Does 608(b)(2) allows parties to ask character witnesses on cross-examination about specific instances of a fact witness's behavior?
Yes! While the party who calls the character witness may not ask about specific instances, the lawyer on cross-examination can! However, parties cannot offer extrinsic evidence of that conduct.
82
Can parties use a witness's religious beliefs to attack the witness's credibility?
Nope! Rule 610 prohibits parties from using a witness's religious beliefs to attack the witness's credibility. The rule also bars parties from using religious beliefs to enhance credibility.
83
Can evidence of one's religious beliefs be offered for other purposes aside from attacking or supporting the witness's credibility?
Yes! Evidence of one's religious beliefs can be offered for other purposes. Such evidence can be offered when relevant to other matters.
84
What are 3 ways to introduce evidence of untruthful character of a witness?
1) FRE 608(b)(1): on cross exam, ask the fact witness about specific instances of untruthful behavior
2) FRE 609: confront the fact witness with a prior criminal conviction
3) FRE 608(a): call a character witness to testify by way of opinion or reputation regarding the fact witness's character for untruthfulness.
85
How does FRE 608(a) work?
1) attacking party must go first. No "bolstering" permitted.
2) character witness's testimony on direct may ONLY be in the form of reputation and/or opinion. NEVER specific acts.
3) MUST lay a foundation that character witness has sufficient knowledge to express opinion and/or relate reputation.
86
What constitutes an attack on one's character for truthfulness?
1) on cross, the witness is questioned about a specific instance of untruthful character.
2) on cross, the witness is questioned about a criminal conviction
3) opposing party presents reputation and/or opinion evidence from a character witness regarding the fact witness's untruthful character.
87
What is the rule of completeness?
FRE 106: If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other party - or any other writing or recorded statement - that in fairness ought to be considered at the same time.
88
When does FRE 106 allow a party to introduce qualifying portions of a writing or recorded statement?
as soon as the opponent offers the first portion.
89
Does FRE 106 apply to oral conversations, photographs, and physical objects?
NOPE! FRE 106 applies to only writings and recorded statements; it does not apply to other forms of evidence.
90
Can court use 403 and 611 to develop a similar completeness principle for oral statements?
Yes!
91
4 categories of "character evidence"
1) evidence of witness's character for truthfulness [FRE 608, 609]
2) evidence of anyone's propensity to act in a certain way on a particular occasion, based on their character or past acts [mostly barred by FRE 404(a)(1)]
3) evidence relevant to someone's character, when that person's character is an essential element of a charge, claim or defense [FRE 405(b)]
4) Evidence of past acts which may suggest a character trial, but which are not offered to prove propensity [FRE 404(b)].
92
FRE 405
(a) When evidence of a person's character or character trait is admissible, it may be proved by testimony about the person's reputation or by testimony in the form of an opinion... on cross examination of the character witness, the court may allow an inquiry into relevant specific instances of the person's conduct.
(b) when a person's character or character trait is an essential element of a charge, claim, or defense, the character trait may also be proved by relevant specific instances of the person's conduct.
93
What types of cases have the person's character trait as the subject of a case?
1) Defamation (libel, slander)
2) Child Custody Cases
3) Entrapment cases
4) Negligent entrustment cases
94
What rule bars character evidence when used to prove propensity?
Rule 404(a)(1): Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
95
Is some character evidence to prove propensity in criminal cases allowed?
Yes, FRE 404(a)(2) allows some character evidence to prove propensity in criminal cases.
96
what are the 3 critical points of FRE 404(a)(2)?
1) must be a criminal case
2) defendant must be first (prosecution can't start the fight)
3) character trait must be pertinent
97
How does 404(a)(2) work?
1) defendant offers evidence of own pertinent trait, prosecutor may rebut ONLY with evidence that defendant has opposite of that same trait [404(a)(2)(A)]
2) If defendant offers evidence of victim's pertinent trait, prosecutor may rebut with BOTH evidence that victim has opposite of that trait AND that defendant possess that same trait ascribed to victim [404(a)(2)(B)]
3) in homicide cases, if defendant offers any evidence that victim was first aggressor, prosecutor can respond with evidence that victim had peaceful, nonviolent character [404(a)(2)(C)].
98
What does FRE 404(b) do?
404(b) exceptions to general bar against propensity evidence of prior acts when offered to prove something other than propensity.
99
How to figure out whether evidence of a prior act is offered to prove something other than propensity.
The vital question is what the evidence is being offered to prove...
are they trying to prove the person has a particular character trait and acted in accordance with it?
or are they trying to prove something else?
100
What is FRE 406?
evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.
101
What does habit mean in the FREs?
habit refers to specific, repeated responses to a particular situation or stimulus. In other words, habit means an individual who is placed in a particular situation will respond over and over again with the same specific behavior.
102
What are prohibited uses of a victim's sexual behavior or predisposition? FRE 412
The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:
1) evidence offered to prove that a victim engaged in other sexual behavior; or
2) evidence offered to prove a victim's sexual predisposition.
103
4 important points regarding FRE 412(a)
1) the rule encompasses both civil and criminal proceedings
2) in both civil and criminal context, rule 412 applies only to trials "involving alleged sexual misconduct"
3) 412 bars both types of evidence that rape defendants previously offered to show propensity: it prohibits evidence of specific acts AND of reputation or general character.
4) the rule broadly bars evidence of sexual behavior or predisposition regardless of the purpose for which a litigant offers that evidence.
104
What are the exceptions to 412(a) that are provided in 412(b) for criminal cases?
412(b)(1): the court may admit the following in a criminal case
(A) specific instances of alleged victim's sexual behavior if offered to prove that someone other than the defendant was the source of 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;
(C) evidence whose exclusion would violate the defendant's constitutional rights.
105
What are the exceptions to 412(a) that are provided in 412(b) for civil cases?
FRE 412(b)(2): in a civil case, the court may admit evidence offered to prove a victim's sexual behavior or sexual predisposition if its probative value substantially outweighs the danger:
(A) of harm to any victim and
(B) of unfair prejudice to any party
(C) the court may admit evidence of a victim's reputation only if the victim has placed it in controversy.
106
Does rule 412 apply to sexual harassment suits even when the plaintiff claims no sexual assault or other physical contact?
Yes!
107
Are FREs 413, 414, and 415 exceptions to 404(a)'s prohibition of character evidence?
Yes! These rules allow the use of character evidence to prove a defendant's tendency to commit sexual assault or child molestation.
108
What does FRE 413 allow?
FRE 413 allows prosecutors to introduce evidence of other sexual assaults committed by the defendant and use that evidence for any purpose, including to suggest that the defendant has a propensity to commit sexual assaults.
109
What does FRE 414 do?
achieves same result as FRE 413 for prosecutions for child molestation.
110
What does FRE 415 do?
Allows the same evidence as FRE 413 & 414 and propensity reasoning in civil cases involving sexual assault or child molestation.
111
When does FRE 104(a) apply?
applies when evidence offered is unquestionably relevant, but the resolution of a legal issue or the application or a policy-based exclusion determines admissibility.
Must find by a preponderance of the evidence.
112
When does FRE 104(b) apply?
When the evidence is relevant only if some disputed fact is true, then admissibility depends on whether there is a sufficient (prima facie) showing of that fact.
Must find that a rational jury could conclude by a preponderance of the evidence.
113
What does judicial notice apply to?
Judicial notice applies to things that advances a party's case - adjudicative facts
114
What are legislative facts?
general observations appellate courts and legislatures make in opinions and bills to justify policy decisions and enactments. These don't relate to the specific cases or specific facts of a case, for example:
- "Interstate travel is common in the U.S."
- "Guns are widely available in the United States."
115
What are adjudicative facts?
facts related to the present case which the parties want to prove to help meet their burden of proof or to undermine the opposing party's case, for example:
- "Mt. Rainier is in the State of Washington"
- "It was raining in Seattle on April 15, 2019"
116
What are facts subject to judicial notice under FRE 201(b)?
"Adjudicative" facts which are not subject to reasonable dispute because:
1) they are generally known in the court's jurisdiction, or;
2) they can be readily determined by sources whose accuracy cannot be reasonably questioned.
117
When can courts take judicial notice under FRE 201(c)?
1) MAY do it whenever they want, if it's an adjudicative fact not subject to reasonable dispute.
2) MUST do it if it is an adjudicative fact and a party requests it and supplies with judge with sources whose accuracy cannot be reasonably questioned.
118
What is the effect of judicial notice in civil vs criminal cases?
Civil cases: judicially noticed facts are conclusively proven
Criminal cases: jury may accept or reject judicially noticed facts.
(this works similarly for stipulations)
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What are stipulations?
agreements between lawyers in the case that they do not want to fight about something.
Parties can agree that a fact is not in dispute, even if that fact is not properly the subject of judicial notice.
120
What are the 3 requirements for "Lay" opinions under FRE 701?
1) must be based on the witness's own perception (FRE 602, personal knowledge)
2) the opinion must be helpful to the jury (FRE 401-402, relevance)
3) the opinion can't rest on scientific, technical or specialized knowledge, but may rest to some extent on every experiences in the witness's life (FRE 701-702).
121
Must expert testimony be based on reliable principles and methodologies?
Yes
122
How to determine reliability of expert testimony?
Daubert Test:
In determining reliability, courts should consider (among other things):
1) whether the theory or technique underlying the expert's testimony has been tested;
2) whether the theory or technique has been subject to peer review and publication;
3) the technique's known or potential error rate;
4) whether standards exist controlling the technique's application
5) whether the theory or technique has been generally accepted in the relevant scientific community.
123
What is the rule that governs expert testimony?
FRE 702
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What are the requirements for expert testimony under 702?
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(A) THE EXPERT’S SCIENTIFIC, TECHNICAL, OR OTHER SPECIALIZED KNOWLEDGE WILL HELP THE TRIER OF FACT TO UNDERSTAND THE EVIDENCE OR TO DETERMINE A FACT IN ISSUE;
(B) The testimony is based on sufficient facts or data;
(C) The testimony is the product of reliable principles and methods; and
(D) The expert has reliably applied the principles and methods to the facts of the case.
125
What are the 4 steps to lay foundation for experts and their testimony?
1) Qualify the witness as an expert to testify based upon scientific, technical or specialized knowledge, education, skill, training or experience (FRE 702)
2) Demonstrate that the proposed testimony of the expert is based upon valid science or methodology, such that it is “reliable” (FRE 702 and Daubert)
3) Demonstrate that the expert used accepted, reliable techniques to apply the scientific theory, technical or specialized knowledge (etc.) to the facts of this case (FRE 702 and Daubert)
4) Show that the expert’s testimony will be helpful to the jury in determining some fact of consequence in the case (the “fit” requirement of FRE 702, relevance under FRE 401, and balancing under FRE 403.)
126
What are things only experts get to do?
1) Despite exclusion order under FRE 615, experts may remain in court and observe the testimony of other witnesses if experts in the field reasonably rely on such testimony in forming opinions.
2) Certify books and other reference materials as “Learned Treatises” under FRE 803(18).
3) Testify to opinions and conclusions not based solely on their own perceptions and personal knowledge, but also on hearsay and other inadmissible evidence - if experts in the field “reasonably rely on such information in rendering opinions.” (FRE 703, 705)
4) Be asked and answer hypothetical questions based on evidence presented at trial (FRE 611, Common Law).
127
May you elicit an expert's opinion without first eliciting the facts and/or data upon which that opinion is based?
Yes, under FRE 705
128
When can facts and/or data relied upon by an expert in forming an opinion be admitted?
If the facts and/or data relied upon the expert in forming an opinion are otherwise inadmissible, the proponent of the testimony may only disclose the facts and/or data to the jury if the probative value in helping the jury evaluate the expert’s opinion substantially outweighs the prejudicial effect. (FRE 703, FRE 105).
129
May an expert be required to disclose facts or data on cross examination?
Yes under 705
130
What does absolute vs qualified immunity mean?
Absolute means they can only be waived if the person that holds it waived it.
Qualified privileges are privileges that allow the opposing party to compel someone to reveal information if they are able to make an adequate showing.
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Who can waive a privilege?
only a person who controls the privilege can waive it.
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Do privileges apply even when other FRE's don't?
Yes
133
what does implied waiver mean?
something someone does that waives privilege…
Sometimes people make mistakes. Happens during discovery when sending something that was confidential. There are ways to fix that if you fix it quickly but it is important to be really careful about that.
134
What are the basics of Attorney/Client Privilege?
1) A/C privilege protects communications, not independently existing facts or objects
2) Protects communications made in “confidence”
3) Protects communications by the client and the lawyer, for the purpose of obtaining and providing legal advice, legal services, representation, etc.
4) Crime-fraud exception
5) Client controls the privilege; attorney can and should assert.
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Does an attorney need to know the client was using them to commit a crime in order for the crime-fraud exception to apply?
Nope
136
Are people who work for the attorney also covered by the privilege?
Yes
137
What are the basics of work product doctrine?
1) Protected by absolute privilege:
Attorney’s mental impressions, conclusions, opinions, legal theories and analysis
2) Protected by qualified privilege:
Factual complications and summaries
138
In a corporate setting, when is a communication covered by absolute a/c privilege under Upjohn?
1) An employee of the corporation
2) Is directed to speak
3) Confidentially
4) To the corporation’s lawyers
5) About a matter within the scope of that employee’s duties
6) For the purpose of obtaining legal advice for the corporation and/or to prepare for litigation
139
Who can waive a/c privilege in a corporate setting?
only the "control group" can waive... the control group consists of CEO and other higher ups.
140
What is "use immunity"?
Prosecutors can offer immunity to get rid of someone’s criminal liability as a way to motivate them to testify. Basically when this immunity is given, the prosecutors can’t use what they say against them.
141
fifth amendment
“No person shall be compelled in any criminal case to be a witness against himself…”
142
What is spousal testimonial privilege?
spouses can’t be compelled to testify against their spouse in a criminal case or criminal grand jury.
143
What is marital communications privilege?
allows spouses to keep confidential communications secret
144
When does spousal testimonial privilege apply?
only in criminal cases when one spouse is a defendant or grand jury target.
145
who controls the spousal testimonial privilege?
witness-spouse controls the privilege
146
how long does spousal testimonial privilege last?
only lasts while the marriage lasts
147
What are the exceptions for spousal testimonial privilege?
when it is a crime by one spouse against another, against a child in their care and, in many courts crimes jointly committed by the spouses.
148
When does the marital communications privilege apply?
applies in both civil and criminal cases and applies whether either spouse is a party or not
149
how long does marital communications privilege survive?
Survives past the end of the marriage
150
who controls the marital communications privilege?
both spouses
151
What is covered under the marital communications privilege
communication must have occurred during the marriage and have been made in confidence. It covers only communications and not observations.
152
Is saying something around kids who are old enough to understand in confidence?
Nope
153
What are the exceptions to marital communications privilege?
crimes by one spouse against another, a child in their care, and in most courts crimes jointly committed by the spouses.
154
What rules govern authentication?
901-902
155
Authentication: FRE 901-902 in simple terms
If you want to introduce some item into evidence (physical object, document, photo, video, etc.), you must make a prima facie showing that is is what it purports to be (FRE 901). If the evidence passed through a number of hands before being presented in court, you will have to establish a “chain of custody.”
There is a closed list of things that are self-authenticating (FRE 902). You do not need to know this list for the exam.
156
What is the burden for authentication?
prima facie - a low burden- basically someone with personal knowledge has to say it is what they say it is.
157
What rules govern the best evidence rule?
1001-1004
158
Best Evidence Rule: FRE 1001-1004 in simple terms
1) If you want to prove the content of a writing, recording, photo, or video, produce the writing, recording, photo or video in court so everyone can judge for themselves what it says or shows (FRE 1001-1002).
2) Duplicates of writings, recordings, photos and videos are admissible as long as there is no genuine question raised about the authenticity of the item or it would be otherwise unfair to admit the duplicate. If there is a genuine question raised or if it would be unfair to use a duplicate, get the original (FRE 1003)
3) In rare circumstances, you don’t have to produce a writing, recording, photo or video to prove content (FRE 1004)
159
What rule prohibits a juror from testifying as a witness in the same case in which the juror serves?
606(a)
159
What rule bars inquiry into jurors' mental processes, communications with other jurors, and other aspects of the jury's deliberations through juror testimony
FRE 606(b)
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important points of 606(b)
1) Applies AFTER the jury renders a verdict
2) Restricts only testimony from JURORS
3) Bars inquiry into jurors’ MENTAL PROCESSES, COMMUNICATIONS WITH OTHER JURORS, AND OTHER ASPECTS OF THE JURY’S DELIBERATIONS.
161
What are exceptions to 606(b) provided in 606(b)(2)?
EXTRANEOUS prejudicial information brought to the jury’s attention
Improper OUTSIDE INFLUENCE
MISTAKE in entering verdict
162
Under 609(c) is evidence that the accused committed a crime as a juvenile ever admissible?
Nope
