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Flashcards in Federal Rules of Evidence Deck (18)
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Does a party need to continue objecting or making an offer of proof once the court rules definitively on the record on the admission or exclusion of evidence?

No. Once the court rules definitively on the record - either before or at trial - a party need not renew an objection or offer of proof to preserve a claim of error for appeal.


Discuss FRE 412 - Victim's Sexual Behavior or Predisposition

It is not admissible to prove victim engaged in other sexual behavior OR to a prove a victim's sexual predisposition.


1. Evidence of specific instances of sexual behavior, if offered to prove someone other than defendant was source of semen, injury, or other physical evidence.

2. If offered to prove consent

3. Evidence whose exclusion would violate defendant's constitutional rights


What is the procedure for a party to offer evidence under FRE 412?

1. The party must file a motion that specifically describes the evidence and states the purpose for which it is to be offered.

2. Motion must be filed at least 14 days before trial unless court, for good cause, sets a different time

3. Serves the motion on all parties

4. Notifies the victim


Discuss admission of similar crimes in sexual assault cases.

1. If defendant accused of sexual assault, the court may admit evidence defendant committed any other sexual assault.

2. Prosecutor must disclose intent to offer to defendant, including witnesses' statements or summary of expected testimony at least 15 days before trial unless court allows a later time for good cause.


Discuss admission of similar crimes in child molestation cases.

1. If defendant accused of child molestation, the court may admit evidence defendant committed any other child molestation.

2. Prosecutor must disclose intent to offer to defendant, including witnesses' statements or summary of expected testimony at least 15 days before trial unless court allows a later time for good cause.


Discuss Psychotherapist-Patient Privilege.

Confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure. Also extends to confidential communications made to licensed social workers in the course of psychotherapy.


Discuss the Spousal Privilege.

1. The witness-spouse alone has a privilege to refuse to testify adversely; they may neither be compelled to testify nor foreclosed from testifying.

2. Bars one spouse from testifying as to the confidential marital communications between the spouses.

3. Does not apply to conversations about crimes in which they are jointly participating.


When may a juror testify?

1. Whether extraneous prejudicial information was improperly brought to the jury's attention.

2. Whether an outside influence was improperly brought to bear on any jury.

3. A mistake was made in entering the verdict on the verdict form.


Discuss impeachment of a witness by evidence of a criminal conviction.

1. For a crime, in the convicting jurisdiction, was punishable by death or imprisonment for more than one year:

- must be admitted in a criminal case in which the witness is not the defendant

- must be admitted in a criminal case in which the witness is the defendant, if the probative value outweighs its prejudicial effect to defendant

2. For any crime regardless of punishment if it is a crime that required proving a dishonest act or false statement.


When can a conviction older than 10 years be used for impeachment?

It is admissible only if:

1. its probative value substantially outweighs its preludial effect; and

2. the proponent gives the adverse party reasonable written notice of intent to use it so the adverse party has fair opportunity to contest its use.


When is evidence of a juvenile adjudication admissible?

1. offered in a criminal case;

2. adjudication for a witness other than defendant;

3. an adult's conviction for that offense would be admissible to attack credibility; and

4. admitting evidence is necessary to fairly determine guilt or innocence.


Discuss the effect an appeal has on the admissibility of a criminal conviction to attack credibility.

A conviction that otherwise satisfies FRE 609 is admissible even if an appeal is pending. Evidence of the pendency is also admissible.


What is the scope of cross-examination under the FRE?

Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the credibility of the witness. The court may allow inquiry on other matters as if on direct examination.


Discuss the court calling or examining a witness.

1. The court may call a witness on its own or at a party's request. Each party is entitled to cross-examine the witness.

2. The court may examine a witness regardless who calls the witness.

3. A party may object to the court's calling or examining a witness either at the time or at the next opportunity when the jury is not present.


Discuss an opinion by an expert on an ultimate issue.

An expert must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or a defense.


If a learned treatise, periodical, or pamphlet is admitted as an exception to the hearsay rule, what manner is it admitted?

It may be read into evidence but not received as an exhibit.


Discuss FRE 807 - the Residual Exception to Hearsay.

Under following circumstances, a hearsay statement is not excluded by the hearsay rule if the statement is not specifically covered by a hearsay exception:

1. The statement has equivalent circumstantial guarantees of trustworthiness;

2. It is offered as evidence of a material fact;

3. It is more probative on the point for which it is offered than any other evidence the proponent can obtain through reasonable efforts; AND

4. Admitting it will best serve the purposes of the FRE and the interests of justice.

NOTICE must be given before trial for the statement to be admissible. Must give particulars of the statement including the declarant's name and address so party has a fair opportunity to meet it.


When do the FRE apply and not apply?

APPLY: Criminal cases and proceedings.


- grand jury proceedings
- extradition or rendition
- sentencing
- granting or revoking probation or supervised release
- considering whether to release on bail or otherwise