Post-Midterm Evidence Flashcards
(23 cards)
What is Rule 412 called in laymens terms?
Rape Shield Laws
What is the broad prohibited uses of Rule 412(a) evidence?
Evidence is NOT admissible in Civil OR Criminal proceeding involving sexual misconduct:
- offered to prove victim’s other sexual behavior (acts); or
- offered to prove a victim’s sexual predisposition (reputation/opinion)
What are the Exceptions to Rule 412 in Criminal Cases (412(b)(1))?
412(b)(1):
(A) specific instances of sexual behavior if to prove someone other than D was source of physical evidence;
(B) specific instances of victims sexual behavior in relation to the D accused of sexual misconduct IF offered by D to prove CONSENT; or if offered by P for any other purpose; or
(C) exclusion would violate D’s K rights (schemes of fabrication)
What are the exceptions to Rule 412(a) that apply in Civil Cases?
Rule 412(b)(2):
sexual behavior or sexual predisposition may be offered if:
probative value substantially outweighs danger of harm to any victim AND of unfair prejudice to any party.
Under the 412(b) exceptions may evidence of the victim’s reputation be admitted always?
No, only if the victim placed it in controversy
What are the procedural constraints/rules for Rule 412(b) if a party intends to introduce 412 evidence?
offering party must:
- give court and parties 14 day notice before trial; AND
- Court must hold sealed proceeding to determine admissibility
What is Rule 104(a) ?
Preliminary Questions:
Court MUST decide a prelim question of law or fact about:
1. witness qualification
2. a privilege exists; or
3. evidence is admissible
Court is not bound by rules of evidence, only privilege rules.
What are common examples of issues under Rule 104(a) where the court will decide the facts?
- 407 - timing of measures
- 406 - conduct as habit
- 408 - claim or negotiation as existing?
- Offers under 409
- plea discussions 410
- if good faith belief exists under 608 or 405
- Rule 411 dispute
What is the rule for Rule 104(b)?
If relevance of evidence depends on whether a fact exists, the offering party must prove to the preponderance of the evidence that a rational jury could resolve the factual dispute either way to admit. the Court may also conditionally admit evidence.
What are the examples of disputes falling under Rule 104(b)?
Rule 602 - personal knowledge
Rule 404(b) other acts
Rule 412 - sexual misconduct
What are the three situations where a jury must be removed under 104(c)?
- Admissibility of confession
- D in criminal case is a witness and requests the jury be removed; or
- Justice so requires.
What is Professor’s shorthand for the Rule defining Hearsay 801?
Hearsay is when a DECLARANT’s out-of-court statement is offered to prove the truth of the matter asserted.
What is Rule 802?
Hearsay is not admissible unless a statute, SCOTUS, or a RULE prescribes otherwise.
What is the definition of “Statement” in rule 801?
a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion
Under 801, what is “not hearsay” that is involving Rule 613 and prior inconsistent statements?
Declarant testifies, subject to cross about a prior statement and:
- inconsistent prior statement given under perjury (trial, hearing, deposition); OR
- is consistent and offered to rebut or rehabilitate declarant’s credibility; OR
- identifies a person as someone the declarant perceived earlier
Under 801 (d)(2) what is the second matter “not hearsay” that involves a party opponent?
801(d)(2)- An Opposing Party’s Statement
- made by the party; OR
- party manifested it adopted or believed to be true; OR
- made by a person the party authorized to make a statement on subject; OR
- made by party’s agent or employee on matter within scope of relationship; OR
- made by party’s coconspirator during and in furtherance of conspiracy
What is Rule 803(1) exception - Present Sense Impressions to Hearsay?
Present Sense Impressions:
A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
-NO analysis
What is Rule 803(2) excited utterance exception?
A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. The statement MUST relate to the stressful event.
What is Rule 803(3) Then-Existing Mental, Emotional, or physical condition (regardless of availability)?
A statement is NOT EXCLUDED BY HEARSAY of the declarant’s THEN-existing
- state of mind (such as motive, intent, or plan) or
- emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health),
BUT this doe NOT include a statement of memory or belief TO PROVE the fact remembered or believed UNLESS it relates to the validity or terms of the declarant’s will
Are comments like “my leg was hurting an hour ago” admissible under 803(3) then-existing mental, emotional, of physical condition exception to hearsay?
NO - it does not cover statements about past, only about the then-existing state of mind
Rule 702 Expert Witness Testimony basic rule - opinion is okay if . . .
- qualified
- help trier of fact
- sufficient facts or data
- reliable methods and principles (Daubert)
- reliably applied principles
Rule 702 Daubert standard?
- Tested
- Subject to peer review
- error rate
- standard controlling technique and application
- generally accepted in relevant scientific community
Rule 701 Opinion of Lay Witness
opinion limited to rationally based on perception; helpful to understanding testimony; NOT based on 702
