Massive Deck Flashcards
(158 cards)
1
Q
Two requirements for valid objection
A
(1) must be timely; (2) state specific legal grounds
2
Q
Why would you file a motion in limine?
A
To get evidence in or out before proceedings begin.
3
Q
Does a party need to renew an objection of offer of proof to preserve a claim of error for appeal?
A
An objection need not be renewed at trial if the judge makes a “definitive ruling” on a pretrial motion.
4
Q
Evidence is relevant if:
Rule?
A
(1) It has any tendency to make a fact more or less probable than it would be without the evidence
AND
(2) the fact is of consequence determining the action
Rule 401 - Test for Relevant Evidence
5
Q
Facts of Consequence
A
Evidence doesn’t necessarily have to prove the fact; may instead prove a link in a chain - like motive by inference by proving intent
6
Q
Relevant evidence is admissible unless any of these provides otherwise (4)
Rule?
A
- US Const.
- Federal statute
- Rule of Evidence
- Other rules proscribed by SCOTUS
Rule 402 - General Admissibility of Relevant Evidence
7
Q
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of: (6)
Rule?
A
- unfair prejudice
- confusing issues
- misleading the jury
- undue delay
- wasting time
- needlessly presenting cumulative evidence
Rule 403
8
Q
Is a person’s character or character trait admissible to prove that on a particular occasion the person acted in accordance with the character or trait?
Rule?
A
No.
Rule 404(a)(1) - Prohibited Uses.
9
Q
Can a defendant offer evidence of the defendant’s pertinent trait?
If evidence is admitted, can the prosecutor offer evidence to rebut it?
Rule?
A
Yes for both.
Rule 404(a)(2)(A)
10
Q
FRE 403
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, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
Wording leans towards admissibility.
11
Q
What is Direct Evidence?
A
Evidence that, if accepted as genuine or believed to be true, necessarily establishes the point trying to be proven.
Ex: C saw A running from the scene - circumstantial evidence that A killed B, direct evidence that A ran from the scene.
12
Q
What is Circumstantial Evidence?
A
The conclusion does not necessarily follow the underlying premises, though at least they support it.
Requirements:
- have to believe witness.
- have to infer what the witness is telling us.
13
Q
When evidence is admissible as to one party for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall do what?
A
Rule 105
Restrict the evidence to its proper scope instruct the jury accordingly.
- limited instruction will reduce the unfair prejudice.
14
Q
What is hearsay?
A
Hearsay is an out-of-court statement offered in court to prove the truth of the matter asserted.
15
Q
Define “Statement” according to Rule 801(a).
A
(1) An oral or written assertion
(2) nonverbal conduct of a person, it it is intended by the person as an assertion.
16
Q
Define “Declarant” according to Rule 801(b).
A
A person who makes a statement.
17
Q
Rule 802 - Hearsay Rule.
A
Hearsay is not admissible except under these rules or by SCOTUS or Acts of Congress.
18
Q
According to Rule 803, what statements are not excluded by the hearsay rule regardless of the availability of the declarant?
A
(1) Present sense impression
(2) Excited Utterance
19
Q
What is “present sense impression”?
A
A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
20
Q
What is “excited utterance”?
A
A statement relating to a startling event or condition.
21
Q
According to Rule 804, what exceptions to hearsay exists when the declarant is unavailable?
A
(1) Former testimony
(2) Statement under belief of imminent death
(3) Statement against interest
(4) Statement of Personal or Family History
(5) Statement offered against a party that wrongfully caused the declarant’s unavailability
22
Q
Hearsay Problem
As proof that B lacked testamentary capacity in April, evidence that several times in March he told friends that he was Woody Allen.
A
NOT HEARSAY.
Matter asserted - that he is Woody Allen, not his testamentary capacity
Trying to prove B lack testamentary capacity
23
Q
Hearsay Problem
As proof that C assumed that risk of accident on account of faulty brakes in riding in D’s car, D’s testimony that “I told C before he got in that something was wrong with my brakes.”
A
NOT HEARSAY
Matter asserted - “I told C before in got in that something was wrong with my brakes.”
Trying to prove - C knew of risk of faulty brakes - effect on listener (notice)
Relevant even if statement is false
24
Q
Hearsay Problem
In E’s personal injury suit, as proof that F was an agent of defendant All-Cure Drugstore, E’s testimony that F said, “I’m awfully sorry, I was running an errand for my employer All-Cure Drugstore.”
A
HEARSAY
Matter asserted - “I’m awfully sorry, I was running an errand for my employer All-Cure Drugstore.”
Trying to prove F is an agent of the defendant.
25
Hearsay Problem
As proof that G stole a car, evidence that police stopped him and that his girlfriend H falsely stated at that time, “This car belongs to my brother.”
NOT HEARSAY
Matter asserted - "This car belongs to my brother."
Trying to prove G stole the car.
It gives probative value b/c gf lied which implies guilt - prosecutor is offering statement for its falsity and allows us to make an inference gf is covering up for G.
OR, it is considered a non-assertive conduct of lying so we don't have a statement, so we are looking at conduct, not speech
26
Hearsay Problem
As proof that H was frightened when J brandished a plastic pistol and demanded cash, evidence that H began sweating and shaking.
NOT HEARSAY
nonverbal conduct that was not intended to be an assertion/statement
nothing to suggest he intended this conduct
27
Hearsay Problem
As proof that the time was about midnight when K entered the building, testimony by L that she saw K come in and mentioned it to M 10 minutes later, coupled w/ M’s testimony that it was “just past midnight when L told me that she saw K enter.”
NOT HEARSAY
L testifies she "saw" K enter (see-do rule)
- L's words to M are not offered to prove the matter asserted; we need the statement to reference the point in which K entered the building
M didn't see K enter the building
Trying to prove K entered the building about midnight
28
Hearsay Problem
As proof that N committed the robbery w/ which he is charged, testimony from bystander O that “I picked N out of the lineup as the one who did it.”
HEARSAY - nonverbal conduct intended to be an assertion (pointing)
Matter asserted - "I picked N out of the lineup as the one who did it."
Trying to prove N committed the robbery
Declarant is O
29
Hearsay Problem
As proof that P and Q had never met before, evidence that Q said to P on parting after a short conversation: “Very nice to meet you”
Most likely NOT HEARSAY
statement is really saying “I just met you” so it is being offered to prove they had just met. However, Prof. says this is a close call and isn’t being offered to prove it was nice to meet him, etc.
- -a social convention that indicated it was the first time they met.
* matter asserted: “very nice to meet you”
* trying to prove P and Q never met before
30
Hearsay Problem
As proof that R was unusually accomplished in French, evidence that in her first year of college she was accepted into a fourth-year course.
NOT HEARSAY
-- nonverbal conduct not intended to be an assertion
-- (but Tatham case would say it was hearsay—sea captain’s conduct impliedly asserts)
--In TX, it would be hear say only if the conduct is intended as a substitute for speech
--matter asserted: first year of college she was accepted into a fourth-year course, not paperwork, no out of court statement
--trying to prove: R was unusually accomplished in French
--SEEDO aka boatercycle
31
Hearsay Problem
As proof that defendant S participated in a criminal venture under duress, evidence that co-participant T told him, “We will kill you if you don’t help us.
NOT HEARSAY
Matter asserted - "We will kill you if you don't help us."
Trying to prove - S was under duress when he acted criminally - effect on the listener
- No independent legal significance b/c the mere speaking of the words do not amount to duress
- effect on the listener statement. About whether the listener believed that they would kill - It is not if they would have killed him or not
- offering to prove that S believed him
32
Hearsay Problem
As proof that U favored increasing the penalties for drunk driving, evidence that she joined an organization entitled Mothers Against Drunk Driving, coupled w/ proof that the principal aim of the organization is to increase such penalties.
NOT HEARSAY
- nonverbal conduct not intended as a statement
- could argue that it is hearsay though by saying that joining a single issue organization is a statement
Matter asserted - not enough here to mean it is an assertion.
33
Hearsay Problem
As proof that defendant V owned a .32 caliber pistol, testimony by a police officer that when he asked V’s father W whether V owned such a pistol, W went to a drawer in the house where he and V lived, pulled out a .32 caliber pistol, and handed it to the officer.
HEARSAY
Matter asserted - W was asked about the pistol and W pulled out the pistol
Trying to prove V owned a pistol
Declarant - W, the father. All he does is go to the draw and pull out the gun. But this is assertive conduct.
34
Hearsay Problem
As proof that it was raining at 10am, proof that X said at that time, “it should stop raining in the next hour.”
HEARSAY
Offered to prove that is is raining by asserting it should stop which means it currently is.
Matter asserted - "it should stop raining in the next hour
Trying to prove it was raining at 10am
35
Hearsay Problem
As proof that officer Y acted in good faith in arresting Z, offered by Y in defending against the claim brought by Z for violation of his rights, evidence that the prosecuting attorney told Y “you have probable cause to arrest Z.”
NOT HEARSAY - effect on the listener
Matter asserted - the prosecuting attorney told Y "you have probable cause to arrest Z."
Trying to prove Y acted in good faith.
Out of court declarant - prosecuting attorney.
36
Hearsay Problem
As proof that St. John’s beat Georgetown in basketball, evidence that A, who had bet on Georgetown, paid off his debt.
NOT HEARSAY
-nonverbal conduct not intended as an assertion
--Wright v. Tatham says paying off a debt is conduct that implies an assertion that St. John beat Georgetown
--In Texas, this would not be hearsay to the extent that this is a verbal assertion.-this is wrong, gill did it, he is a fuck up. - typed by Gill
--Texas follows Tatum in regards to verbal assertions- this is wrong, gill did it, he is a fuck up
37
Hearsay Problem
As proof that B had committed a prior bank robbery, evidence that she was prosecuted for that crime and that a jury had found her guilty.
HEARSAY
Matter asserted - B was prosecuted for robbery and jury found her guilty
Trying to prove B committed a prior robbery
- The jury is the declarant
38
Hearsay Problem
As proof that C went to New Orleans on Tuesday, evidence that on Monday he said, “Tomorrow I’m going to New Orleans.”
HEARSAY
Matter asserted: “Tomorrow I’m going to New Orleans.”
Trying to prove: C went to New Orleans on Tuesday (the next day)
- The fact that you intend to do something doesn’t mean you will---it is probative only if it is true to prove the matter asserted
- Probative value: he actually asserts he will go to New Orleans
- Common human experience: people often do things they intend to do.
39
Hearsay Problem
As proof that his brakes were bad, evidence that D said, “I think I ought to reline my brakes before anybody drives the car.”
HERRRSAY
Matter asserted: “I think I ought to reline my brakes before anybody drives the car.”
Trying to prove: that his brakes were bad
- Like Oblique statement; oblique way of saying his brakes are bad
- OR could be like Shirchev’s statement b/c what he thinks is circumstantially relevant to show something is wrong with the brakes
- Direct verbal assertion and offering to prove brakes are bad
- Declarant: D
40
Hearsay Problem
As proof that E was selling pornographic literature, evidence that he received a letter from F enclosing a check and saying in substance “please send me that dirty book.”
NOT HEARSAY
- not trying to assert anything
- Argument for not hearsay: relevancy b/c the proof that E sells dirty books and flows from F’s belief that he sell them
- More of a conduct of placing an order for argument for Not hearsay---placing an order looks like an offer and acceptance and so it seems to have an independent legal significance
(could be either hearsay or not but better argument is not)
Declarant: F
41
Hearsay Problem
As proof that G knew H, evidence that G had in his cellphone directory H’s name and H’s phone number.
NOT HEARSAY
- Non assertive act of putting numbers in the phone
- Would only have his name and phone number if he knew him
- Knowledge gained in only one way of meeting someone
42
Hearsay Problem
As proof of the manner in which J was injured in the workplace, evidence of a videotape in which J reenacts the events that led to her injury, offered in proof by J.
HEARSAY
- Conduct intended to be an assertion
- The reenactment makes the video a statement (even if there's no sound)
Matter asserted - this is how the accident happened
Trying to prove this is how the accident happened
43
Hearsay Problem
As proof that K did not have permission to drive the car to Sacramento, evidence that owner L had told K “not to drive it out of San Francisco.”
NOT HEARSAY
- words of independent legal significance b/c it limits the scope of the permission so it makes a verbal act
- OR could be the effect on the listener: what K had thought of the permission allowed
- A grant of permission is evidence of independent legal significance
44
Hearsay Problem
As proof that tenant L terminated his month-to-month tenancy effective November 1, evidence that L sent owner M a letter in September that stated: “October will be my last month as tenant. I am vacating by November 1.”
NOT HEARSAY
- Independent legal significance (notice of termination of a month to month lease)
- It is a verbal act
- Independent legal significance can be verbal or written depending on what the law requires
45
Hearsay Problem
As proof that the stairs in Bloomingdeal’s Department store were adequately lighted, testimony by the floor manager that in 6 years several customers had complained that they were a long hard climb but no one had mentioned any lighting problem.
NOT HEARSAY
- Conduct instead of speech (non-complaint)
- Offered to prove the absence of complaint by implying there was nothing to complain about (declarants are the people that never spoke - no assertion)
- Non-complaint is hearsay ONLY if it intended to assert something (ex. a written survey)
- Matter asserted: customers complied it is hard to climb
- Not offering this for the truth of the matter asserted. The absence of complaint is not a statement. We’d have to say it’s non-conduct.
- It’s conduct from which we are inferring that nothing went wrong and the lighting was adequate.
This means it’s not hearsay.
46
Hearsay Problem
As proof that N had been in the law library before, evidence that on entering the library she said to the attendant, “May I please have the key to the locked cage in the basement, so I can look at Starkie on Evidence?” coupled with proof that in fact that book is shelved in a locked cage at that location.
NOT HEARSAY
- Matter asserted: “May I please have the key to the locked cage in the basement, so I can look at Starkie on Evidence?”
- Trying to prove: that N knew that the book was in the basement, suggesting she had experience in getting the book
- Like paper mache man problem---offered as circumstantial evidence of her knowledge and experience
- Most probable explanation is that she had experience of this knowledge.
- The words were spoken indicating her state of knowledge
47
Hearsay Problem
As proof that the hit-and-run driver drove a Porsche, testimony that the logo on the rear of the vehicle in question read “Porsche.”
NOT HEARSAY (verbal objects)—logo speaks for itself
- Could argue that it is hearsay though because it says “Porsche”
- Recall identifications based on national brands
- Could be Hearsay as an assertion, saying that it read “Porsche”
48
Hearsay problem
On the question whether tenant O had paid his rent for the month of April, testimony that in handing landlord P a check in the appropriate amount O said to P, “This is for the April rent.”
NOT HEARSAY
- Independent legal significance
- Performing within contract
49
Hearsay Problem
On the issue set in question 27, testimony that on day after giving the check to P, O was heard to say “I paid my rent for April.”
HEARSAY
- No words of independent legal significance
- Has nothing to do with contract b/c he is telling his friend after the fact of performing the contract
Matter asserted: "I paid my rent for April."
Trying to prove: she paid her rent
50
Hearsay Problem
As proof that Q's boyfriend R was Q's assailant, Q's statement to a nurse in the hospital emergency room, "for god's sakes don't let my boyfriend R near me!”
---NOT HEARSAY (Probably!).
- The statement is that R should not be near Q. The matter asserted is that Q’s boyfriend R was Q’s assailant. The statement is made to prove the matter asserted, therefore it is not hearsay.
- Matter asserted: “for god’s sakes don’t let my boyfriend R near me!”
- Trying to prove: Q’s boyfriend R was Q’s assailant
- Probably not a verbal act of legal significance
51
Hearsay Problem
As proof that the train had come from the west, testimony by eyewitness S that she pointed in the direction of the train when she heard it coming, coupled w/ testimony by a police officer present at the scene that the direction in which T pointed was west.
NOT HEARSAY
- Nonverbal conduct was intended as a statement
- Would be hearsay if the probative worth is in it asserting a fact
- See-Do rule
- -live non hearsay testimony of what was going on—not introducing it as her out of court statement, but saying that she saw the train and she pointed, then officer can say that he saw T pointing towards the West. Therefore neither one is talking of the out of court statements.
- Her pointing amounts to a statement here. Pointing the direction indicated. Meaning that it would be hearsay if offered for the truth of the matter asserted.
- The fact that she is in court shows that it was not hearsay
- Not her testimony is not repeating the out of court statement. instead of repeating, she is doing see do rule
- She pointed west is see do; thus, no hearsay
- we are not relying on her in court statement
- This is the same thing as a reference point or MARKER - we can link these two bits of testimony through see do not
52
Hearsay Problem
As proof that HiTechCorp was a bad credit risk, evidence that Din & Broodstreet gives HiTechCorp a poor credit rating.
HEARSAY
- Matter asserted: Din & Broodstreet gave HiTech a poor credit rating
- Trying to prove: HiTech is a bad credit risk
- Could possibly use the business record exception if offering the credit report as evidence of bad credit rating.
53
Hearsay Problem
As proof that BankWest acted reasonably in refusing to refinance HiTechCorp’s debt, evidence that Din & Broodstreet gives HiTechCorp a poor credit rating.
NOT HEARSAY
- Matter asserted: HiTechCorp is in bad credit
- Trying to prove: BankWest believed this and reasonably refused to refinance them, regardless if the statement was false
- The fact that din and brood street is dependable on the effect of the listener, not to prove the matter asserted.
54
Hearsay Problem
As proof that U was seriously ill, evidence that he was being kept in the intensive-care unit of the hospital.
NOT HEARSAY
- No statement, it is pure conduct not intended as an assertion
- If a note from a doctor sending U to the ICU were used, there would be a hearsay issue, but this case is only conduct.
55
Hearsay Problem
As proof that V is an honest man, evidence that he handed the store clerk a $10 bill for a $7 purchase and, on receiving a $10 bill and three ones from the clerk in change, V returned the $10 bill and said, “I think you’ve made a mistake here.”
NOT HEARSAY
- Matter asserted: “I think you’ve made a mistake here.” - clerk made a mistake
- Trying to prove: V is an honest man---have to take matter asserted is true before we can say he was an honest man
- Can also say it is conduct, the returning of the money. This conduct was not intended as an assertion. Isn’t it sort of saying it gave you too much money?
56
Hearsay Problem
As proof that W is a violent man, testimony that he is reputed in his community to be such.
HEARSAY
- Matter asserted: community thinks W is violent
- Trying to prove W is violent
- Declarant: the community is making an assertion
- EXCEPTION that allows you to bring in reputation (803.21)
57
According Rule 801 (d)(1)(A), a prior statement by a witness is "not hearsay" if what 3 conditions are met?
(1) The witness must now be cross-examinable about the prior statement
(2) The statement must be "inconsistent" with the present testimony
(3) The statement must have been made under oath in a "trial" or "other proceeding" or "deposition"
58
According to the ruling in State v. Smith, does a sworn affidavit given in a law enforcement investigation satisfy Rule 801(d)(1)(A)'s "other proceedings"?
Yes, if there is sufficient reliability in the facts and circumstances surrounding the prior statement
59
Can a statement to the grand jury come in as a prior inconsistent statement under 801 (d) even though there is no cross examination at a grand jury proceeding?
Yes, as long as there is oath and proceeding
60
Can two statements be deemed inconsistent if one is very general and the other very specific?
Yes
61
When discussing statements of a party opponent, is it ok to say "statement of a party"?
No - she is a sneaking ho and will try to trick us
- Statement has to be offered by the party opponent
62
Name the 5 types of admissions of a party opponent.
(1) A party's own statement
(2) Adoptive admission
(3) Statement of a party's agent authorized to speak for the party
(4) Statement of party's agent speaking within the scope of employment
(5) Co-conspirators' statement
63
According to the ruling in Doyle v. Ohio, may a post-Miranda silence be used to impeach a witness?
Noooope
64
According to the ruling in Jenkins, can silence pre-arrest be used to impeach a witness?
Yuuup
65
What is Article I of FRE about?
General Provisions
66
What is Article II of FRE about?
Judicial Notice
67
What is Article III of FRE about?
Presumptions in civil actions and proceedings
68
What is Article IV of FRE about?
Relevancy and Its Limits
69
What is Article V of FRE about?
Privileges
70
What is Article VI of FRE about?
Witnesses
71
What is Article VII of FRE about?
Opinions and Expert Testimony
72
What is Article VIII of FRE about?
Hearsay
73
What is Article IX of FRE about?
Authentication and Identification
74
What is Article X of FRE about?
Contents of Writings, Recordings, and Photographs
75
What is Article XI of FRE about?
Miscellaneous Rules
76
Rule 102
Purpose and Construction
"These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination."
77
The Federal Rules do not apply to: (8)
1. The court's determination of ap preliminary question of fact governing admissibility
2. Grand Jury Proceedings
3. Criminal proceedings for the following purposes:
- the issuance of a search or arrest warrant or a criminal summons
- a preminlary examination in a criminal case
- extradition or rendition
- consideration of bail or other release
- sentencing
- granting or revoking probation or supervised release
78
Who decides preliminary questions regarding the competency of evidence, including the admissibility of evidence, whether privilege exists, and whether a person is qualified to be a witness?
The judge
79
Once evidence has even admitted, whose role is it to determine the weight and credibility?
The jury
80
A party may challenge an evidentiary ruling as erroneous only if: (2)
- the ruling affects a substantial right of a party
| - the party notifies the judge of the error
81
If the evidentiary ruling admits evidence, a party must: (3 options)
- make a timely objection
- motion to strike and must usually state the specific ground
- motion in order to preserve the admissibility issue for appeal
82
If the evidentiary ruling excludes evidence, a party must:
- make an offer of proof in order to preserve the evidence for appellate review of the ruling.
83
The burden of proof comprises of what two distinct burdens?
- burden of production
| - burden of persuasion
84
What must a party do with the burden of production?
- produce legally sufficient evidence as to each element of a claim or defense, so that a reasonable trier of fact could enter that the alleged fact has been proved.
85
What is the burden of persuasion?
- the degree to which legally sufficient evidence must be presented to the trier of fact.
86
What is the standard of persuasion in most civil cases?
- preponderance of the evidence
87
A fact is proven by a preponderance of the evidence if:
- it is more likely to exist than not.
88
What is a higher standard of persuasion used in civil cases such as fraud?
- clear and convincing evidence
89
A fact is proven by clear and convincing evidence if:
- it is highly probable or reasonably certain.
90
May a criminal defendant introduce reputation or opinion evidence of the victim's character when it is relevant to the defense asserted?
Yes
- note: this type of evidence will be severely limited in sexual misconduct cases
91
Is evidence of a prior bad act admissible to prove a person's character in order to show that the person acted in accordance with that character on a particular occasion?
Rule?
No.
FRE 404(b)(1)
92
A driver is sued to recover for injuries inflicted on the plaintiff allegedly due to the driver's negligent failure to stop at a stop sign.
Can the plaintiff introduce testimony by a witness that the driver failed to stop at the same stop sign the day before the accident in question for the purpose of proving that the plaintiff failed to stop at the stop sign on the day of the accident?
Nope
404(b)(1)
93
Bad acts are admissible to prove:
- motive
- opportunity
- intent
- preparation
- plan
- knowledge
- identity
- absence of mistake
- lack of accident
- THINK OF MIMIC - Misconduct, Intent, absence of Mistake, Identity, or Common plan
94
A defendant is charged with murder.
Can evidence that the defendant was previously convicted of robbery in which the murder victim was the person who prosecuted the robbery be admissible?
yes, rule 404(b)(2)
95
Is evidence of specific instances of a person's conduct admissible in a civil case?
Yes, FRE 405(b)
96
Is evidence of specific instances of a person's conduct admissible in a criminal case?
No, FRE 405(a)
97
Is evidence of a person's habit or an organizations routine admissible to prove that the person or organization acted in accordance with the habit or routine on a particular occasion?
Yes, FRE 406
98
Do questions of mental competence go to the weight or admissibility of evidence?
Weight
99
In order to testify about a matter, a non-expert witness must have what?
Personal knowledge about the matter
100
How can personal knowledge by established?
Personal knowledge may be established by the witness's own testimony as well as through other means - FRE 602
101
What must a witness give in order to testify truthfully?
An oath or affirmation
102
What form must the oath or affirmation be in?
- must be in a form designed to impress that duty on the witness's conscience - FRE 603
103
Does an interpreter have to give an oath or affirmation to make a true translation?
Yes, FRE 604
104
May a juror testify as a witness in front of the members of the jury?
No, FRE 606(a)
105
If a juror is called to testify, must the opposing party be given the opportunity to object outside the presence of the jury?
Yes, FRE 606(a)
106
During an inquiry into the validity of a verdict, a juror generally may not testify about what? (3)
(1) Any statement made or incident that occurred during the course of the jury deliberations
(2) The effect of anything upon that juror's, or any other juror's, vote
(3) Any juror's mental processes concerning the verdict
- FRE 606(b)
107
What does a child's competence depend on?
According to Wheeler v. US
- intelligence
- ability to differentiate between truth and falsehood
- understanding of the importance of telling
108
Is there a specific age a child becomes competent to testify?
No, you can't fix stupid
109
What party can attack a witness's credibility?
Any party, including the party that called the witness
110
A witness's credibility may be attacked or supported by testimony regarding the witness's character for untruthfulness. Generally, this testimony must be:
- about the witness's reputation for having a character for untruthfulness
- or in the form of an opinion of the witness's character for untruthfulness
FRE 608(a)
111
When is evidence of truthful character admissible?
After the witness's character for truthfulness has been attacked
112
Is a specific instance of conduct to attack or support the witness's character for truthfulness generally admissible?
No, FRE 608(b)
113
When can a witness be asked about specific instances of conduct?
On cross-examination
FRE 608(b)
114
On cross examination, a witness may be asked about specific instances of conduct if it is probative of truthfulness of: (2)
- the witness
- another witness about whose character the witness being cross-examined has testified
FRE 608(b)
115
The judge may refuse to allow questioning the witness about specific instances of conduct under what other FRE's?
FRE 403 & FRE 611
403 - the probative value is substantially outweighed by the danger of unfair prejudice
611 - protection of the witness from harassment or undue embarrassment
116
Is an arrest per se misconduct?
No
- Michelson v. US, 335 U.S. 469
117
May a witness be cross-examined about having been arrested solely for the purpose of impeaching the witness's character for truthfulness?
No
BUT can be cross-examined about the underlying conduct that lead to the arrest
118
Can a witness's character for truthfulness be impeached with evidence that the witness has been convicted of a crime?
Yes, FRE 609
119
When impeaching a witness with a criminal conviction, does it matter whether the conviction was a state or federal crime?
No, FRE 609
120
What type of crime can you impeach a witness with?
Any crime (felony OR misdemeanor) involving dishonesty or false statement, regardless of the punishment
121
A conviction for a crime not involving fraud or dishonesty is admissible to impeach a witness only if the crime is what?
Punishable by death or imprisonment for more than one year
- FRE 609(a)(1)
122
When the witness is a criminal defendant, evidence of a felony conviction for a crime not involving dishonesty or false statement is admissible ONLY IF what?
Only if its probative value outweighs the prejudicial effect to that defendant
123
If more than 10 years have elapsed since the conviction, then evidence of the conviction is admissible ONLY IF what?
- The probative value of the conviction, supported by specific facts and circumstances, SUBSTANTIALLY OUTWEIGHS its prejudicial effect
AND
- the proponent gives an adverse party reasonable WRITTEN NOTICE of the inert to use such evidence so that the advise party has a fair opportunity to contact the use of such evidence
124
Is evidence of a prior conviction admissible if the witness has been pardoned?
No, not admissible, FRE 609(c)
125
Is it required for a party who is examining a witness about the witness's prior statement to show it or disclose its contents to the witness?
No
BUT the statement must be shown, or its contents disclosed, to an adverse party's attorney upon request
FRE 613(a)
126
When is extrinsic evidence of a winitss's prior inconsistent statement admissible?
Only if:
(1) the witness is given an opportunity to explain or deny the statement
and
(2) an adverse party is given an opportunity to examine the witness about it, or if justice so requires.
127
When is extrinsic evidence of a witness's prior inconsistent statement admissible?
Only if:
(1) the witness is given an opportunity to explain or deny the statement
and
(2) an adverse party is given an opportunity to examine the witness about it, or if justice so requires.
128
When is extrinsic evidence of a witness's prior inconsistent statement admissible?
Only if:
(1) the witness is given an opportunity to explain or deny the statement
and
(2) an adverse party is given an opportunity to examine the witness about it, or if justice so requires.
FRE 613(b)
129
May the court call a witness on its own or at party's request?
Yes
FRE 614(a)
130
May the court examine a witness regardless of who calls the witness?
Yes
FRE 614(b)
131
May a party 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?
Yes
FRE 614(c)
132
Must a court, at a party's request, order a witness excluded so that they cannot hear other witnesses' testimony?
Yes
FRE 615
133
FRE 615 - "Excluding Witnesses" does not authorize excluding who?
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 the 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
d. A person authorized by statute to be present
134
FRE 615 - "Excluding Witnesses" does not authorize excluding who?
(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 the 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
(d) A person authorized by statute to be present
135
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is ...
(a) rationally based on the witness's perception
(b) helpful to clearly understanding the witness's testimony or to determining a fact in issue
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702
FRE 701
136
A witness who is qualified as an expert 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
(d) the expert has reliably applied the principles and methods to the facts of the case
FRE 702
137
A witness who is qualified as an expert 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
(d) the expert has reliably applied the principles and methods to the facts of the case
FRE 702
138
In a criminal case, can an expert witness 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 of a defense?
No
FRE 704(b)
139
Is an opinion objectionable just because it embraces an ultimate issue?
Generally no
FRE 704(a)
140
May an expert state an opinion and give the reasons for it without first testifying to the underlying facts or data?
Yes
but the may be required to disclose those facts or data on cross-examination
FRE 705
141
May an expert state an opinion and give the reasons for it without first testifying to the underlying facts or data?
Yes
but the may be required to disclose those facts or data on cross-examination
FRE 705
142
May a court, on its own or a party's motion, order the parties to show cause why expert witnesses should be appointed?
Yes
FRE 706(a)
143
The court may appoint any expert that what?
(1) the parties agree to
| (2) consents to act
144
The court may appoint any expert that what?
(1) the parties agree to
(2) consents to act
FRE 706(a)
145
Must the court inform the expert of the expert's duties?
Yes
FRE 706(b)
146
How can the court inform the expert of the expert's duties?
(1) in writing and have a copy filed with the clerk
(2) orally at conference in which the parties have an opportunity to participate
FRE 706(b)
147
What must the expert do?
The expert must advise the parties of any findings the expert makes
FRE 706(b)(1)
148
What may happen to the expert?
- May be deposed by any party
- May be called to testify by the court or any party
- May be cross-examined by any party, including the party that called the expert
FRE 706(b)(2)-(4)
149
What may happen to the expert?
- May be deposed by any party
- May be called to testify by the court or any party
- May be cross-examined by any party, including the party that called the expert
FRE 706(b)(2)-(4)
150
What is the expert entitled to?
Reasonable compensation, as set by the court
F U Pay Me
FRE 706(c)
151
What is the expert entitled to?
Reasonable compensation, as set by the court
F U Pay Me
FRE 706(c)
152
May the court authorize disclosure to the jury that the court appointed the expert?
Yes
FRE 706(d)
153
Does FRE 706 limit a party from calling its own witnesses?
No
FRE 706(e)
154
Is an original writing, recording, or photograph required in order to prove its content?
Yes unless these rules or a federal statute provides otherwise
FRE 1002
155
A duplicate is admissible to the same exert as the original unless what?
- a genuine question is raised about the original's authenticity
or
- the circumstances make it unfair to admit the duplicate
FRE 1003
156
A duplicate is admissible to the same exert as the original unless what?
- a genuine question is raised about the original's authenticity
or
- the circumstances make it unfair to admit the duplicate
FRE 1003
157
An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if what?
(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith
(b) an original cannot be obtained by any available judicial process
(c) the party against whom the original would be offered has control of the original; was at the time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing
(d) the writing, recording, or photograph is not closely related to a controlling issue
FRE 1004
158
An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if what?
(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith
(b) an original cannot be obtained by any available judicial process
(c) the party against whom the original would be offered has control of the original; was at the time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing
(d) the writing, recording, or photograph is not closely related to a controlling issue
FRE 1004
