Evidence FlashCards Preview

Evidence > Evidence FlashCards > Flashcards

Flashcards in Evidence FlashCards Deck (125)
Loading flashcards...

Rule 602: Personal Knowledge

Witness can only testify to something they have personal knowledge of. (Does not apply to a witness's expert testimony)

Sufficient to support a finding that W has personal knowledge


Rule 611(a): Court Controls

The court exercises reasonable control over the mode and order of examining witnesses. This is to get to the truth, not waste time, and protect witnesses from being harassed.


Rule 611(b): Scope of Cross-Examination

Cross-examination cannot go beyond the subject matter of the direct examination or the witness's credibility. However, the court MAY allow inquiry into additional matters (gotta be persuasive)


Rule 613(c): Leading Questions

Don't use leading questions on direct examination unless you're directing witness's testimony.

You can use leading questions on cross

You can use leading questions on direct if there's a hostile witness/adverse party.


Rule 612: Refreshing a Witness's Memory, and what are the 5 steps?

Can do it during testimony or before.

5 steps:
1) say they don't remember
2) ask if seeing doc would help
3) ask if they recognize doc
4) show opposing counsel the doc
5) have them read it and ask if it helped

The adverse party gets to have the writing produced before the hearing and to cross-examine about it. If the writing is not produced, court may issue an appropriate order. (In crim case it might be mistrial)


5 Forms of Impeachment?

1. Bias/Interest
2. Prior Inconsistent Statement
3. Contradiction
4. Sensory/Mental Incapacity
5. Character for Untruthfulness


Rule 607: Impeachment

Any party can impeach any witness.


Rule 613: Prior Inconsistent Statement

You do not have to show or provide the prior inconsistent statement unless requested.

You can only bring in a prior inconsistent statement if the witness is given an opportunity to explain/deny the statement.

will get a limiting instruction to make sure it's only used for impeachment purposes, not for the TotMA


Rule 613: Extrinsic Evidence & Prior Inconsis. Statement

Which two are automatically non-collateral?

Extrinsic evidence is only allowed to prove prior inconsistent statement if it is a non-collateral (I.e. IMPORTANT TO THE CASE) matter.

Bias and Incapacity are automatically non-collateral.


Rule 403: Excluding Evidence

You need to exclude evidence if the probative value is substantially outweighed by prejudice, confusing the issues, misleading the jury, or wasting time.


608(a): Character for Truthfulness - Reputation/Opinion Evidence

You can attack or support a witness's credibility by their reputation for a character of truthfulness or untruthfulness, or by an opinion about their character of truthfulness or untruthfulness.
However, evidence of truthful character is admissible only if their character has been attacked.


608(b): Character for Truthfulness - Specific Instances of Conduct

EE not admissible to prove specific instances of W's conduct to attack/support their character for truthfulness.

On cross-exam, you can ask about specific instances (non-convictions) of a witness's character for truthfulness or untruthfulness if it's probative of that character.

You can also ask them about another witness they have testified about.


Rule 609(a)(1)(A): Criminal Conviction - Witness NOT the defendant

Any felony crime must be admitted.


Rule 609(a)(1)(B): Criminal Conviction - Witness IS defendant

Must be admitted in a criminal case if the probative value outweighs its prejudicial effect to the defendant.


Rule 609(a)(2): Criminal Conviction - Dishonest Crimes

Must be admitted if dishonesty is an element of the crime (think fraud, perjury, etc). Applies to ANY witness.


Rule 901: Authentication

Proponent of the evidence must produce circumstantial evidence "sufficient to support a finding" that the evidence is what it says it is.

Examples are voice experts, handwriting, witness with knowledge, distinctive characteristics, evidence of computer system, etc.


Rule 902: Self-Authenticating Evidence

Evidence self-authenticates if it's like an official, real document.

Think like public records, certified copies, etc. Signed and sealed rule.


Rule 106: Completeness

If a party introduces all or part of a writing/recorded statement, adverse party can ask for the rest of it (like bringing in additional context).

Not oral statements. That's 403


Rule 405(a): Proving Character through Reputation/Opinion

You can bring in testimony about the person's reputation or testimony in the form of opinion. On cross-exam, the court MAY allow an inquiry into relevant specific instances of the character's conduct.


Rule 405(b): Proving Character through Specific Instances

If a person's character/character trait is an essential element of a charge, claim, or defense, you can use specific instances of the person's conduct to prove the trait.


Rule 404(a)(1): Character and Propensity Evidence

Evidence of a person's character/trait is not admissible if used to show they acted a certain way on one occasion because of their character trait.


Rule 404(a)(2): Character Evidence Exceptions in Criminal Case

(A) Defendant can offer evidence of their own pertinent trait;
(B) A defendant may offer evidence of an alleged victim's pertinent trait, and the prosecutor can rebut it and offer evidence of the defendant's same trait; and
(C) In homicide cases, prosecutor can bring in evidence of victim's peacefulness (to show they are not the first aggressor)


Rule 404(b)(1): Specific Crimes, Wrongs, or Other Acts [INADMISSIBLE]

Evidence of crimes/wrongs can't be used for propensity


Rule 404(b)(2): Specific Crimes Wrongs, or Other Acts [ADMISSIBLE]

You can bring in specific acts for non-propensity purposes, such as: motive, opportunity, Modus Operandi, intent, preparation, plan, knowledge, to prove identity, etc. Prosecutor must (before trial) provide reasonable notice they're going to use the evidence.


Rule 406: Habit/Routine Practice

Used to prove a person/company acted in accordance with their habit/routine practice.

1) repeated response to a
2) specific stimulus/event


Rule 412: Rape Shield Law

Cannot bring in a rape victim's sexual history/predisposition. However, you can if you're trying to show the physical evidence is a result of sex with multiple partners or that they had history of consent.


Rules 413-415: Similar Sexual Assault Crimes

You can bring in specific conduct if they have committed sexual assault before, or child molestation if they are charged with a child molestation crime.


Rule 801(c): Definition of Hearsay

An out of court statement offered to prove the truth of the matter asserted.


Non-Hearsay Purposes

1. Prior Inconsistent Statements
2. Effect on the Listener
3. Legally operative language
4. Circumstantial Evidence of State of Mind
5. Knowledge of the Speaker


801(d) recognizes two uses as "exemptions"

prior inconsistent statements
opposing party statements