Federal Evidence Flashcards
(155 cards)
1
Q
When is evidence relevant?
A
If it has any tendency to make any fact of consequence more or less probable.
2
Q
What are the limitations on relevance?
A
(1) Logical relevance is not equal to probative value, (2) Courts have the discretion to exclude evidence likely to be more unfairly prejudicial or confusing than probative, (3) Public policy excludes certain types of evidence.
3
Q
What is FRE 403?
A
A court has discretion to exclude relevant evidence if the probative value is substantially outweighed by (1) danger of unfair prejudice, (2) confusion of issue, (3) misleading the jury, (4) undue delay, or (5) waste of time.
4
Q
What types of evidence are likely to be excluded despite being relevant?
A
(1) Emotionally disturbing, (2) repetitive or confusing, (3) admissible for one purpose, but inadmissible for another.
5
Q
What is the test for exclusion?
A
To exclude relevant evidence, probative value must be substantially outweighed by danger of unfair prejudice.
6
Q
What types of evidence are not subject to judicial discretion?
A
Impeachment evidence based on prior convictions for crimes involving false statements.
7
Q
How must evidentiary hearings be conducted?
A
Admissibility must be done outside the presence of a jury.
8
Q
What types of evidence are excluded as a matter of public policy?
A
(1) Liability insurance, (2) subsequent remedial measures, (3) settlements, (4) offers to settle, (5) plea bargaining, and (6) offers to pay or payment of medical expenses.
9
Q
When can be liability insurance be introduced?
A
Never to prove fault or ability to damages, but may be admissible to prove ownership, control, motive, or similar.
10
Q
What is the limit on subsequent remedial measures?
A
Evidence of repairs or other remedial measures after an injury are inadmissible to prove fault, defect, or inadequate warning, however, it may be introduced to show either (1) a rebuttal of an infeasibility defense or (2) ownership or control.
11
Q
What is the nature of statements made during compromise or settlement negotiations?
A
Compromises, settlement offers, and related statements including factual admissions are inadmissible to prove liability or fault.
12
Q
What is necessary for a settlement offer?
A
(1) Initiation of litigation, (2) unambiguous intent to negotiate by both parties.
13
Q
When are criminal pleas inadmissible?
A
Pleas, offers to plea, and other related are inadmissible, however, if a plea is later accepted it may be admitted.
14
Q
What statements are admissible from offers to pay medical expenses?
A
Any statements relating to factual admissions are admissible. Offers to pay medical expenses in exchange for liability release are inadmissible.
15
Q
What are inadmissible purposes for offers to pay medical expenses?
A
Offers to pay medical expenses may not be used to prove liability.
16
Q
What is the general rule on similar occurrences?
A
Similar occurrences are generally inadmissible as irrelevant and unfairly prejudicial
17
Q
When are similar occurrences admissible?
A
(1) Causation, (2) prior accidents if demonstrating: (a) pattern of fraudulent claims or (b) pre-existing conditions, (3) intent or absence of mistake, (4) rebut an impossibility defense, (5) value (similar transactions), (6) industry custom, (7) business routine.
18
Q
When are habits admissible?
A
Habit may be relevant and admissible to show that the person acted in conformity with that habit on a given occasion.
19
Q
What may show habit?
A
(1) highly specific conduct and frequently repeated acts or (2) regular or instinctual conduct.
20
Q
What is the general rule for character evidence?
A
Character evidence is generally admissible to show propensity to commit a crime.
21
Q
When is character evidence admissible?
A
(1) Character is an essential element of a claim or defense, (2) prior acts of sexual assault or child molestation in cases for similar claims.
22
Q
What are some cases where character is at issue?
A
Defamation and child custody.
23
Q
How is impeachment different from character evidence?
A
Impeachment only applies to the credibility of the witness. Substantive character evidence is subject to greater restrictions that impeachment.
24
Q
When is character evidence admissible for showing good character in criminal cases?
A
A defendant may introduce evidence of good character if the evidence is pertinent to the charged crime.
25
What is the effect of a defendant introducing good character evidence?
The prosecution may then rebut.
26
How may a defendant introduce character evidence for their good character?
Defendants may call a witness to testify only on (1) reputation or (2) opinion. A witness may not introduce specific instances.
27
How may the prosecution rebut good character evidence introduced by the defendant.
(1) The prosecution may cross-examine the defendant's character witness and ask about specific instances of misconduct or prior arrests or (2) call a witness to testify to Defendant's bad pertinent character trait.
28
When may the prosecution introduce character traits about the defendant?
(1) Sexual assault or child molestation, including specific acts, (2) to rebut a defendant's introduction of evidence about the character of a victim with evidence of the same bad character trait.
29
What character evidence is admissible on direct examination?
Reputation and opinion is admissible, specific instances are not.
30
What character evidence is admissible on cross-examination?
Reputation, opinion, and specific instances of conduct.
31
When can a victim's character trait be introduced?
Only the defendant can "open the door" by introducing evidence of victim's character to prove conduct. Especially in a homicide case with self-defense.
32
How does the rape shield apply in civil cases?
(1) Probative value substantially outweighs unfair prejudice; and (2) In the case of reputation evidence, plaintiff puts her reputation at issue in some way.
33
What is the rape shield? 🔀
Reputation and opinion evidence of victim is inadmissible. Evidence to prove sexual behavior is only allowed if (1) a third party is the source of injury or DNA or (2) prior acts of consensual intercourse between victim and defendant.
34
What is the procedure for introducing evidence of prior sexual conduct for victims?
Parties must disclose intent to offer evidence, describe its purpose, and notify the victim 14 days before trial.
35
What is the general rule on introducing the specific conduct of the defendant?
In civil & criminal cases specific instances of defendant's bad conduct are generally in admissible unless introduced for an independent purpose.
36
What are the common non-character uses of prior acts that are admissible?
(1) Motive, (2) Intent, (3) Mistake, (4) Identity, (5) Common plan or scheme.
37
When prior acts are admissible, what role is discretion?
All prior acts are subject to FRE 403 balancing.
38
Who may impeach a witness?
Any party may impeach a witness even if they called the witness.
39
What are the 7 methods of impeachment?
(1) Contradiction, (2) prior inconsistent statement, (3) bias or interest, (4) sensory deficiencies, (5) reputation and/or opinion, (6) prior acts of misconduct, (7) prior criminal conviction.
40
What is the rule on extrinsic evidence for impeachment?
Extrinsic evidence may be used to support reputation or opinion, but prior acts may not be supported by extrinsic evidence.
41
When may evidence be introduced to witness credibility?
After credibility has first been attacked unless a prior consistent statement if the statement was made before they had a motive to lie.
42
What is extrinsic evidence?
Any evidence other than a witnesses testimony at the current proceeding.
43
What is the predominant form of extrinsic evidence?
A prior out-of-court statement. Extrinsic evidence may be introduced to show contradictory facts if it is meant to impeach a witness on a material non-collateral [relevant] matter.
44
What is a collateral matter?
A fact not material to issues in the case. Any evidence that is not directly material, but relates to a witnesses statement it is a collateral matter.
45
When may extrinsic evidence be introduced to support a collateral matter?
Never.
46
What is a contradiction?
Any evidence may be used to show witnesses has made contradictory statements on material issues.
47
What is a prior inconsistent statement?
Any statement made by the witness out of court.
48
How may a prior inconsistent statement get introduced?
May be established through cross-examination or extrinsic evidence.
49
What is required to introduce inconsistent statements?
(1) Foundation, (2) non-collateral, (3) opportunity to explain or deny.
50
When is an otherwise hearsay statement admissible?
If it is used solely for impeachment purposes on a non-collateral matter, but not for the truth of the matter asserted.
51
What may a prior inconsistent statement be used for if it is not hearsay or in an exception?
It may be considered for any purpose.
52
How can bias be established for impeachment?
Must be established through (1) cross-exam or (2) extrinsic evidence with a foundation.
53
What is the foundation requirement for introducing evidence of impeachment?
The witness must have the opportunity to be questioned on cross-exam regarding facts or interest so as to have an opportunity to deny or explain.
54
When may a witness be impeached by prior misconduct?
On any cross-exam about any prior misconduct probative of truthfulness.
55
What misconduct counts as probative of truthfulness?
(1) Lying, (2) fraud, (3) deceit, (4) misrepresentation, or (5) perjury.
56
What extrinsic evidence of misconduct is permitted?
No evidence is permitted. The witness may only be asked and the interrogator must accept the answer.
57
What testimony is admissible for impeachment?
A witness may be impeached or rehabilitated by the testimony of another witness's testimony of their reputation for honesty in the community.
58
When may a witness-defendant be impeached by a prior conviction?
(1) If the conviction is under 10 years, (2) involves acts of dishonesty, or (3) a felony where the probative value outweighs prejudicial effect.
59
When may a non-defendant witness be impeached by a prior conviction?
(1) If under 10 years, (2) felonies, or (3) crimes of dishonest.
60
If a prior conviction is over 10 years when may it be admitted to impeach?
(1) Probative value substantially outweighs unfair prejudice, and (2) adverse party is given advance notice, (3) any felony or any conviction involving acts of dishonesty.
61
What makes a witness competent to testify?
(1) Personal knowledge, (2) adequate memory, (3) capacity to communicate, and (4) sincerity.
62
How is sincerity conveyed and guarded?
The witness takes an oath or affirmation to tell the truth.
63
What is The Rule?
Upon a party's request, the court MUST order non-party witnesses to be absent during the testimony of other witnesses.
64
What are the types of documents a witness may use?
(1) Present recollection refreshed and (2) Recorded recollection.
65
What is a present recollection refreshed?
Any document or item used to refresh the witnesses memory.
66
What are the restrictions of present recollection refreshed?
(1) The document may not be read into testimony, (2) the opponent must be given a chance to inspect, (3) the opponent may introduce into evidence anything used.
67
What is recorded recollection?
A record or document the witness previously made or adopted that is read into evidence.
68
What are the elements of a recorded recollection?
(1) Witness once had knowledge of the record's subject matter, (2) present memory is insufficient to testify as to the contents, (3) record was made or adopted when the matter was fresh in memory; and (4) record accurately reflects the witness's knowledge.
69
What are the objections to questioning forms?
(1) Calls for narrative, (2) leading, (3) assumes facts not in evidence, (4) argumentative, (5) compound, (6) beyond scope of direct.
70
What are the objections to improper responses from witnesses?
Unresponsive or nonresponsive.
71
What are the requirements for lay opinions?
(1) Rationally based on perception, (2) helpful to the trier of fact, (3) not based on any particular expertise, and (4) not a legal conclusion.
72
What are the requirements for expert opinion?
(1) Qualifications that must be laid, (2) Helpful to the trier of fact, (3) reasonably certain, (4) properly based on the facts, and (5) using reliable principles.
73
What are reliable scientific principals for experts?
(1) Peer tested, (2) published, (3) low error rate, (4) reasonably accepted in the field.
74
What is the scope of an experts testimony?
They may render an opinion of any ultimate legal issue, but not on the defendant's mental state in a criminal trial if it is an element of a crime or defense.
75
What are the testimonial privileges?
(1) Attorney-client, (2) doctor-client, (3) spousal, (4) marital communications, (5) psychotherapist/social worker-patient.
76
What is the the privilege not to self-incriminate?
Under the 5th amendment, a witness cannot be compelled to provide self-incriminating testimony in either a civil or criminal case.
77
What may be inferred from invoking the 5th amendment?
(1) In a criminal case no inference is permissible, (2) in a civil case juries may draw an adverse inference.
78
What is the scope of the attorney-client privilege?
To be protected communication must be (1) intended to be confidential, and (2) made to facilitate legal services.
79
When is an attorney-client privilege not available?
(1) Crime or fraud, (2) attorney defending malpractice claim, (3) joint representation between the clients, (4) record of fees and arrangements.
80
What is the scope of physician-patient privilege?
To be protected the communication must: (1) Made for purposes of obtaining diagnosis or treatment, (2) pertinent to diagnosis or treatment; and (3) intended by the patient to be confidential.
81
What are the exceptions to the physician-patient privilege?
(1) the Patient's condition is a legal issue, (2) physicians' services were used in a crime, tort, or to escape capture, and (3) dispute between patient and doctor.
82
What jurisdictions are the physician-patient privileges?
Statutory by state, not in the FRE, but still applied throughout most federal courts because of state law.
83
When is there psychotherapist or social worker privilege?
If the communication and material was (1) intended to be confidential, and (2) communication is made to facilitate therapy or social work.
84
What is the spousal testimonial privilege in criminal cases?
A person whose spouse is a defendant in a criminal case cannot be (1) called as a witness by the prosecution or (2) compelled to testify against their spouse in a criminal proceeding.
85
How does the spousal privilege apply?
Held by the prospective witness spouse and can only be invoked during marriage.
86
What are the elements of the marital privilege?
All communications (1) made confidentially, (2) during the marriage, and (3) not lost by breaking confidentiality with a third party, (4) can be invoked by either spouse in a civil or criminal case.
87
What are the exceptions to the marital privilege?
(1) Suits between spouses, (2) where one spouse is charged with a crime or tort against children, (3) co-defendant spouses.
88
What must be authenticated?
All physical evidence or documents.
89
How do you prove authenticity?
May be moved by any means that serve to establish authenticity. (A low burden).
90
What is self-authenticating evidence?
Any writing that contain identifying information do not need separate authentication.
91
What are examples of self-authenticating documents?
Deeds, notarized documents, newspapers
92
What is an ancient document?
(1) 20 or more years old; (2) does not present any irregularities on its face; and (3) found in a place of natural custody.
93
How are photos authenticated?
A witness must have personal knowledge to authenticate.
94
What are the voice types?
Firsthand hearing or recording?
95
Who may identify a voice?
May be identified by anyone who heard the voice at any time.
96
What are non-unique items?
A non-unique item is any thing that may be facially indistinguishable from others of its kind. To
97
How are non-unique items identified?
The proponent must establish a "chain of custody" e.g. that the proffered evidence is the same item it is claimed to be so long as the chain of custody is without major breaks.
98
What is the best evidence rule?
If evidence is offered to prove the contents of a writing, an original document must be used unless it is unavailable.
99
What is a writing?
Any tangible collection of data. For example, videos, documents, photos, books, emails, text messages, computer drives, medical images.
100
What evidence is sufficient to prove a writing's contents?
(1) Originals, (2) Duplicates, (3) Testimony regarding contents.
101
When are duplicates admissible?
Must be a machine or carbon copy. Generally admissible unless there is a genuine question of authenticity of the original itself.
102
When is testimony available as a supplement to prove a writing's content?
If the original is lost or destroyed. If destroyed in bad faith this testimony is inadmissible.
103
What is the "voluminous documents exception"?
A voluminous series of documents may be summarized in court so long as the originals relied upon are available to all parties for inspection.
104
What is the completeness doctrine?
If a party introduces part of a writing or record into evidence, an adverse party may introduce evidence that it should be fairly considered with it such as the entire document.
105
Does a copy violate the best evidence rule?
Rule 1003: A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.
106
What is judicial notice?
A court may recognize a fact as true without formal presentation of evidence, either on its own or upon formal request of a party.
107
What facts are judicially noticeable facts?
(1) Manifest facts and (2) Notorious facts.
108
What are manifest facts?
Any facts capable of verification by a source that is not subject to reasonable dispute.
109
What are notorious facts?
Any facts generally known with the boundaries of the jurisdiction.
110
When can a judge testify?
A presiding judge can not testify as a witness at trial.
111
What is hearsay?
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Generally inadmissible.
112
What is a statement?
Any oral or written assertion or non-verbal conduct intended as an assertion.
113
When is a statement not hearsay?
An out-of-court statement offered to prove anything other than the truth of the matter asserted.
114
What is a hearsay exemption?
A statement considered "non-hearsay" and therefore admitted.
115
What is a hearsay exception?
Any hearsay statement that may be admitted by the FRE.
116
What are admissible out-of-court statements?
(1) statements of independent legal significance, (2) offered to show the effect on the listener or reader, (3) offered to show knowledge, and (4) to show the state of mind.
117
What are statements of independent legal significance?
Any statement that contains legally operative words offered to show that the statement was said, not whether it is true.
118
What is the nature of a statement offered as circumstantial evidence of the declarant's state of mind?
Hearsay exemption.
119
What are the non-hearsay exemptions?
(1) Statement of party-opponent, including (a) adoptive and (b) vicarious statements (2) judicial statements, and (3) any prior statements.
120
What is a statement of party-opponent?
An out-of-court statement by a party are admissible offered against that party.
121
What judicial statements are under non-hearsay exemptions?
Any judicial statement made in pleading or testimony.
122
What are adoptive statements?
Acquiesence in another's statement.
123
When is silence an adoption?
(1) Party heard, understood, and was capable of responding and (2) reasonable person in the party's position would have responded.
124
What are vicarious statements?
Any statement by someone other than the person against whom the statement is offered which can be attributed to the person because of a principle-agent relationship.
125
What are the forms of vicarious statements?
(1) Agency within scope, (2) Authorized speaker, (3) Co-conspirators statements in furtherance of the conspiracy.
126
What are prior statements?
A non-hearsay exemption of prior statements by a testifying declarant.
127
When are prior statements admissible?
If subject to cross-examination and offered for (1) inconsistent statement, (2) consistent statement, (3) identification after perception.
128
When is an inconsistent statement admissible?
If (1) introduced while subject to cross-exam and opportunity to explain, (2) prior statement under oath, and (3) offered to impeach.
129
When is a prior consistent statement admissible?
To rebut any charge of (1) fabrication, (2) improper motive or influence, or (3) rehabilitation credibility.
130
What is the rule of prior statements of identification?
A prior out-of-court statement is an admissible non-hearsay exemption when used to identify a person the declarant perceived earliler.
131
What hearsay exceptions require the unavailability of the witness?
(1) Former testimony, (2) statements against interest, (3) dying declarations, (4) statements of personal or family history, (5) offered against party procuring declarant's unavailability.
132
What are the hearsay exceptions where the unavailability is immaterial?
(1) Present state of mind, (2) excited utterances, (3) present sense impression, (4) medical statements, (5) past recollection recorded, (6) business records, (7) public records, (8) judgments and prior convictions, (9) ancient documents, (10) documents affecting property interests, (11) learned treatises, (12) family records, (13) market reports.
133
What is "unavailability"?
(1) Privilege, (2) Death or physical incapacity, (3) Refusal despite court order, (4) Lack of memory, (5) Absent and beyond reach of subpoena after a diligent attempt.
134
When is "former testimony" admissible?
(1) Unavailable, (2) Under oath and (3) adverse party was either (a) a party to the previous action with the opportunity to cross and similar motive and (b) a predecessor in interest of the party with the opportunity to cross and similar motive in civil actions.
135
When is a statement against interest admissible?
(1) Unavailable, (2) contrary to declarant's interests, (3) a reasonable person would not make it unless they believed it was true and for criminal, additional corraboration.
136
What are interests that qualify for statements against interest?
(1) Pecuniary, (2) proprietary, or (3) penal.
137
When are dying declarations admissible?
(1) Unavailable, (2) statement made under the belief of impending death, (3) made about cause or circumstances of death, and (4) all civil or homicide cases.
138
What is a present sense impression?
(1) Describes or explains an event or condition, and (2) is made contemporaneously with the event or immediately thereafter.
139
What is an excited utterance?
(1) Relates to a startling or exciting event or condition; and (2) was made while the declarant was under the stress or excitement of the event.
140
What is a state-of-mind exception?
(1) An out-of-court statement; (2) available regardless of availability, (3) that reveals the state of mind, intent, condition, symptom, or sensation at the time of the statement, (4) does not include memory or belief.
141
What is the medical hearsay exception?
Any statement (1) made to a "medical personnel" or relayer; (2) pertinent to assisting in the diagnosis or treatment of a condition, and (3) NOT any admissions.
142
What is the business records exception and when is it admissible?
(1) A record or transaction recorded by a business or organization, (2) made in the regular course of business, (3) made by someone with knowledge at or near the time of the matters described, (4) authenticated or certified in writing.
143
What counts as a business or organization?
Any officially incorporated or unincorporated group, excluding police or law enforcement.
144
What is the public records exception?
A record or report is admissible if (1) created by a public office or agency, (2) describes the activity of the agency, such as (a) matters observed pursuant to a duty imposed by law, or (b) factual finding resulting from an investigation made pursuant to authority granted by law. (3) Is made by an authorized employee in the scope of duty, and (4) made at or near the time or event.
145
What public records are inadmissible?
Any records that are (1) created in the course of criminal investigations or (2) found to lack trustworthiness.
146
What is the public record absence exception?
A public record may be used to show either (1) prove the record does not exist, or (2) prove that a matter did not occur.
147
What is the judgments exception?
Any certified copies of a final judgment for a civil or criminal case may be used to prove any fact essential to a judgment excluding inadmissible convictions.
148
What is the learned treatise exception?
(1) Only expert testimony, (2) accepted authority in a given field, admission, or judicial notice, (3) may only be read into evidence.
149
How may learned treatises be used?
(1) Only by experts, (2) read into the evidence, or (3) on cross to impeach.
150
What is the family records exception?
Any statements found in jewelry engravings, genealogies, bibles, or other keepsakes.
151
What is the ancient document exception?
Any document older than 20 years old.
152
How does the confrontation clause relate to hearsay exceptions?
An otherwise admissible hearsay statement brought against the defendant in a criminal case if: (1) declarant is unavailable, (2) defendant had no prior opportunity to cross-exam the declarant at the time it was made, (3) statement is testimonial unless (4) declarant is unavailable due to the defendant's conduct.
153
What is a testimonial statement?
(1) Prior statements made during court proceedings, (2) statements made in furtherance of a police investigation, (3) statements made during an ongoing emergency.
154
What is the admissibility of a co-defendant statement?
Any hearsay by a non-testifying co-defendant is inadmissible if it expressly implicates another defendant.
155
When are co-defendant statements admissible?
(1) Declarant co-defendent testifies if declarant co-defendant testifies and is subject to cross-exam, (2) portions of the co-defendant's testimony referring to the non-declarant defendant are redacted, (3) statement is used to rebut a charge of coerced confession.
