Pre-Midterm Flashcards
(158 cards)
1
Q
Rule 101 title
A
Scope; Definitions
2
Q
Rule 101 scope
A
These rules apply to proceedings in the United States Courts
3
Q
Rule 102 title
A
Purpose
4
Q
Rule 102 content
A
These rules should be construed so as to administer every proceeding:
fairly, eliminating expense and delay, promote development of evidence law, and secure a just determination
5
Q
Rule 103 title
A
Rulings on Evidence
6
Q
Rule 103 (a) title
A
Preserving a Claim of Error
7
Q
Rule 103(a) rule for rulings that admit evidence
A
A party may claim error in a ruling to admit evidence only if:
- error affects a substantial right of the party;
- party timely objects; and
- party states specific grounds, unless apparent from context
8
Q
Rule 103(a) rule for rulings that exclude evidence
A
A party may claim error in a ruling to exclude evidence only if the error:
- affects a substantial right;
- a party informs the court of its substance by an offer of proof; unless the substance was apparent from the context
9
Q
Rule 103(b) title
A
Not needing to Renew an Objection or Offer of Proof
10
Q
Rule 103(b) rule
A
Once the court rules definitivley on the record, either before or after trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal
11
Q
Rule 103(c) title
A
Court’s Statement About the Ruling; Directing an Offer of Proof
12
Q
Rule 103(c) rule
A
The court may make any statement about the character or form of the evidence, the objection, and the ruling.
The court may direct that the offer of proof be made in question-and-answer form
13
Q
Rule 103(d) title
A
Preventing the Jury from hearing inadmissible evidence
14
Q
Rule 103(d) rule
A
To the extent practicable,
the court MUST conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means
15
Q
Rule 103(e) title
A
Taking Notice of Plain Error
16
Q
Rule 103(e) rule
A
A court may take notice of plain error affecting a substantial right, even if the claim of error was not properly preserved
17
Q
Rule 105 title
A
Limiting Evidence that is not admissible against other parties or for other purposes
18
Q
Rule 105 rule
A
If the court admits evidence that is admissible against a party or for a purpose – but not against another party or for another purpose – the court, upon timely request, MUST restrict evidence to its proper scope and instruct the jury accordingly
19
Q
Short hand phrase for Rule 105
A
Limiting Instruction
20
Q
Rule 1101 title
A
the applicability of the Rules
21
Q
Rule 1101 rule where Rules apply
A
These rules apply to civil and criminal proceedings and contempt proceedings where the court may act summarily.
22
Q
Rule 1101 rule where Rules do not apply
A
These rules do not apply to:
- Preliminary questions of fact under Rule 104 governing admissibility
- Sentencing
- Grand-Jury proceedings
- Miscellaneous proceedings like warrant, preliminary criminal hearing, probation, extradition or rendition
23
Q
Rule 401 title
A
Test for Relevant Evidence
24
Q
Rule 401 rule
A
Evidence is relevant if:
(a) has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action
25
In Rule 401, is "of consequence" equivalent to "material" ?
no, it is less than
26
Rule 402 title
General admissibility of Relevant Evidence
27
Rule 402 rule
Relevant evidence is admissible unless any of the following provides otherwise:
-K
-Federal Statutes
-These Rules
-Other Rules prescribed by the Supreme Court
Irrelevant evidence is not admissible
28
Rule 403 title
Excluding Relevant Evidence for Prejudice, Confusion, Wast of Time, or Other Reasons
29
Rule 403 rule
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
-Needlessly presenting cumulative evidence
30
What are the dangers listed out in Rule 403 that could substantially outweigh the probative value?
- Unfair Prejudice
- Confusing the Issues
- Misleading the Jury
- Undue Delay
- Wasting Time
- Needlessly presenting cumulative evidence
31
Rule 407 title
Subsequent Remedial Measures
32
Rule 407 rule (purposes that do not allow admission)
When measures are taken that would have made an earlier injury, or harm, less likely to occur, evidence of the subsequent measure is not admissible to prove:
- negligence
- culpable conduct
- defect in product or design
- a need for a warning or instruction
33
Rule 407 rule (purposes that are exceptions to those not allowed)
A measure taken that would make an earlier injury less likely to occur MAY be admitted if it is:
- For a purpose OTHER than negligence, culpability, defect in product or design, need for warning
- Impeachment
- or IF DISPUTED proving ownership, control, or feasibility
34
Rule 408 title
Compromise Offers and Negotiations
35
Rule 408(a) Prohibited uses
Evidence from a civil case is not admissible on behalf of any party, in civil and criminal cases, to disprove or prove the validity or amount of a CLAIM or to impeach by prior inconsistent statement:
(1) settlement offers, promising, or accepting of offers; and
(2) conduct or statements made during settlement negotiations about the claim EXCEPT when offered in a criminal case and the negotiations relate to a claim by a public officer in exercise of regulatory, investigative, or enforcement authority
36
Rule 408(b) Exceptions
The court MAY admit this evidence for another purpose such as:
- Any other purpose than proving amount, validity, or for impeachment
- Witness Bias or Prejudice
- Negating contention of undue delay
- Proving effort to obstruct a criminal investigation or prosecution
37
Rule 409 title
Offers to Pay Medical and Similar Expenses
38
Rule 409 rule
Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses, resulting from an injury is NOT admissible to prove:
-Liability
(thus, may be admissible for ANY other purpose than liability)
39
Rule 410 title
Pleas, Plea Discussions, and Related Statements
40
Rule 410(a) Prohibited Uses
In a civil or criminal case, evidence is not admissible against the DEFENDANT who made the plea OR participated in plea discussions:
(1) withdrawn guilty plea
(2) a nolo contendere plea
(3) a statement made during a proceeding on either of those pleas (1) and (2); or
(4) a statement made during plea discussions with an attorney for the prosecuting authority IF no guilty plea resulted or guilty plea was later withdrawn
41
Rule 410 (b) Exceptions
The court MAY admit statements made during a court proceeding on the plea OR during plea discussions with an attorney for prosecuting authority if:
(1) another statement from those proceedings or discussions is introduced, and IN FAIRNESS they ought to be considered together; OR
(2) in a criminal proceeding for perjury or false statement IF D made it under oath, on record, and with counsel present
42
Rule 411 title
Liability Insurance
43
Rule 411 rule
Evidence that a PERSON was or was not insured against liability is not admissible to prove negligence or fault.
BUT it MAY be admitted for ANY other purpose, such as:
Bias, prejudice, agency, ownership, or control
44
Types of Evidence
```
Oral Testimony
Real Evidence
Documents
Demonstrative Evidence
Stipulations
Judicial Notice
Direct Evidence
Circumstantial Evidence
```
45
What is circumstantial evidence?
Unlike direct evidence, it requires the jury to make an inference connecting evidence with the disputed fact (useful to prove state of mind)
46
4 Purposes of Rules of Evidence
(1) protect jury from misleading information
(2) eliminate delay
(3) protect privilege
(4) ensure reliability
47
Rule 1101(c) Except for rules on _________, the applicability of Rules doe not apply in proceedings of: prelim questions of fact; grand jury; miscellaneous proceedings
Privilege
48
Motion in Limine 3 tactics
1. Helps planning for trial
| 2. More sophisticated legal argument
49
Does Rule 606 bar juror testimony about matters involving juror drug or alcohol use that occurred before deliberations despite the rule only using the words “during deliberations”
Yes, SCOTUS barred juror testimony about other jurors alcohol or drug use before deliberations began
50
What are the examples of type of juror testimony and affidavits barred As inadmissible by Rule 606(b)(1) ?
1. Juror mental capacity or fitness during trial
2. Decision was reached on inappropriate basis
3. Jury misunderstood instructions
4. Jurors bullied another
5. Jury considered defendants failure to testify
51
What can trump the Rule 606(b) prohibition of juror testimony concerning the deliberations or an inquiry into the validity of the verdict,
The 6th amendment can trump Rule 606(b) when a juror seeks to testify about overt racial bias in deliberation of criminal case as casting serious doubt on fairness and impartiality of the verdict and deliberations
52
Rules from Old Chief v. U.S. that apply to Rule 403 (Excluding relevant evidence)
1. court balances with ALL evidence admitted
2. State does not generally have to stipulate to elements of a crime
3. However, if there is no substantial probative difference between the evidence the State seeks to prove and the document of stipulating the element, such as in felony-gun-possession - the State may be required to stipulate
53
What is "Unfair" prejudice?
Evidence that lures the fact-finder into declaring guilt or liability on a ground different from proof specific to the offense or legal theory
54
Five Factors influencing the court ruling on a Rule 403 balancing problem?
Extent to which:
1. inflame the passions
2. the jury may overvalue evidence with low relevance
3. the evidence is strongly connected to an element
4. the party can prove same fact through less prejudicial means
5. the prejudice or harm from admitting evidence can be reduced (redact or limit the evidence or testimony)
55
What is a "measure" and what Rule does it pertain to?
Rule 407: Subsequent Remedial Measures
- Taking something off the market
- Recalls
- Policy changes
- Terminating an employee
- Memo to employees or others about new warning
56
Rule 408 Elements: Compromise Offers and Negotiations
Evidence is not admissible if the offer, acceptance, statement, or conduct occured:
1. During compromise negotiations
2. After a CLAIM had arisen, and
3. In CONNECTION with a claim that was disputed
AND
Offered to prove or disprove the VALIDITY or AMOUNT of claim or IMPEACH by PRIOR inconsistent statement.
(as long as not a criminal prosecution following a regulatory investigation)
57
Rule 410 title
Pleas, Plea Discussions, and Related Statements
58
Rule 410(a) prohibited uses
In a civil or criminal case, evidence of the following is not admissible against the DEFENDANT who made the plea or participated in the plea discussions:
1. Guilty plea later withdrawn
2. Nolo contendere plea
3. Statement made during Rule 11 Court proceedings
4. Statement made during plea discussions with an attorney for prosecuting authority
59
T or F
| Guilty pleas that are entered and finalized are not admissible.
False
The are admissible.
60
Rule 410(b) Exceptions
The court MAY admit statements made during a Rule 11 plea proceeding or made during plea discussions if:
1. In any proceeding another statement is introduced that was part of the same plea discussions, if fairness requires
2. In criminal trials for perjury if the statement was made under oath, on the record, and with counsel present
61
Rule 411 title
Liability Insurance
62
Rule 411 rule Liability Insurance
Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted: negligently or wrongfully
BUT the Court MAY admit this evidence for another purpose such as bias, prejudice, agency, or control
63
What is a plea discussion for purposes of Rule 410
1. Defendant displays an "actual subjective expectation to negotiate" a plea; AND
2. that expectation was "reasonable given the totality of the objective circumstances"
64
True or False
| A Defendant can waive Rule 410 that would otherwise protect statements during a plea discussion
True
65
True or False
Rule 411 covers health insurance, disability insurance, life insurance
False
66
Under Rule 411 - Liability insurance
Are indemnity agreements "liability insurance"?
Courts are usually split over this issue.
67
Rule 601 title
Witnesses: Competency to Testify in General
68
Rule 601 rule
"Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness's competency regarding a claim or defense for which state law supplies the rule of decision"
69
Rule 602 title
Need for Personal Knowledge
70
Rule 602 rule
A witness may testify about a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. The witnesses's own testimony may prove personal knowledge.
NOTE: this rule does not apply to a witness's expert testimony under Rule 703
71
Common Law Capacities needed to testify for a witness before Rule 601 (4 elements)
(1) narration;
(2) truth telling;
(3) memory; and
(4) perception
72
Rule 603 title
Oath or Affirmation to Testify Truthfully
73
Rule 603 rule
Before testifying, a witness MUS give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness's conscience.
74
Who is not competent to testify under the Federal Rules?
The presiding Judge may not testify as a witness at the trial - Rule 605 - a party need not object to preserve this issue for appeal
75
Rule 604 title
Interpreter
76
Rule 604 rule
An interpreter must be qualified and must give an oath or affirmation to make a true translation.
77
28 U.S.C. sec 3509
Statute about children's competency to testify: A child is presumed competent - an exam may be conducted by the court upon written motion and offer of proof by a party
78
Rule 605 - title
Judge's Competency as a Witness
79
Rule 605 - rule
The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.
80
Rule 606 - Title
Juror's Competency as a Witness
81
Rule 606(a) Juror's competency as a witness At Trial
A juror may not testify as a witness before other jurors at the trial. If a juror is called to testify, the court MUST give a party an opportunity to object outside the jury's presence.
82
```
Rule 606(b) Juror's competency as a witness
During an Inquiry into the Validity of a Verdict or Indictment:
(1) Prohibited Testimony or Other evidence . . .
```
-Any statement made or incident occurring in the DELIBERATIONS;
- The effect of anything on that juror's or another's vote
- any juror's mental processes concerning the verdict or indictment
ALSO the Court may not receive a juror's affidavit or evidence of a juror's statement on these matters
83
Rule 606(b) Juror's competency as a witness during an inquiry into the Validity of a Verdict or Indictment:
. . .
(2) Exceptions . . .
A juror MAY testify about whether:
- extraneous prejudicial information was improperly brought to the jury's attention
- an outside influence was improperly brought to bear on any juror
- a mistake was made in entering the verdict on the verdict form
84
Professor Olson's Elements on Competence:
Rule 602 - Personal Knowledge
Rule 603 - Oath or Affirmation
(with out one, then not competent to testify)
85
Rule 607: title
Who may Impeach a Witness
86
Rule 607 rule
Any party, including the party that called the witness, may attack the witness's credibility
87
Stages of direct exam:
1. Intro and background
2. Laying foundation
3. Substantive questions
88
States of cross exam:
1. Elicit any positive info from a witness
2. Limit damage done by direct exam
3. Impeach the witness
89
Rule 611 - title
Mode and Order of Examining Witnesses and Presenting Evidence
90
Rule 611(a) rule
Control by the Court: Court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
(1) effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment
91
Rule 611(b) rule
Scope of Cross-Examination: should not go beyond the subject mater of direct, and matters affecting the witness's credibility. The court MAY allow inquiry into additional matters as if on direct exam.
92
Rule 611(c) rule
Leading Questions should not be used on direct, except as necessary to develop the witness's testimony.
Ordinarily the court should allow leading questions:
(1) on cross-exam; and
(2) when a party calls a hostile witness, an adverse party, or witness identified with an adverse party
93
When is it necessary to develop the witness's testimony on direct under Rule 611?
1. Establish background qualifications
2. To Direct a witness's attention to a relevant place or time
3. To help a witness who is hesitant, confused or has trouble recalling (young children, victims of sexual abuse)
94
Goals of Cross-Examination:
1. Obtain useful details
2. Discredit the witness
3. Tell a different story
4. Do no harm
95
Rule 614 Title
Court's Calling or Examining a Witness
96
Rule 614 rule
- The Court can call a witness on its own or at a party's request.
- A court may examine a witness regardless of who calls the witness
- A party may object to judge's questions at the time or at the opportunity when the jury is not present
97
Rule 615 title
Excluding witnesses
98
Rule 615 rule
At a party's request, the court MUST order witnesses excluded so that they cannot hear other testimony. OR the Court MAY do so on its own. BUT this rule does not allow excluding:
1. a party who is natural person
2. officer or employee of a party not a natural person, after being designated so by its attonrey
3. a person whose presence a party shows to be essential to presenting the party's claim or defense
4. a person authorized by statute to be present
99
Rule 612 title
Writing Used to Refresh a Witness's Memory
100
Rule 612(a) scope (writing used to refresh a witness' memory)
This rule gives the ADVERSE party certain options when a witness uses a writing to refresh memory while testifying; or before testifying, if the court decides justice requires such options
101
Rule 612(b) Adverse Party's Options; Deleting unrelated matter
Unless 18 U.S.C. Sec. 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing used to refresh a wit. memory:
1. Produced at the hearing, inspect it, cross examine about it, and to introduce into evidence any portion of it relating to the witness's testimony; and
2. If the producing party claims an unrelated matter is in the writing, the Court MUST examine it in camera and redact such portion before delivering to adverse party
102
Rule 612(c) Failure to Produce or Deliver the Writing uses to refresh a witness's memory (present recollection refreshed)
In a civil case, if the writing is not produced or delivered, the court may order it.
In a criminal case, if the prosecution does not comply, the court MUST strike the witness's testimony - or if justice so requires - declare a mistrial
103
True or False:
Judges can add commonly known facts to a witness's testimony to find that they have sufficient personal knowledge to testify.
True.
Ex: District Court judge could conclude that a life-long resident officer on Virgin Islands could testify no cars were manufactured on the island and all were shipped in.
104
True or Fasles:
| In the "Oath or affirmation" under Rule 603, the words "swear or affirm" must be used in the statement.
False.
As long as the formulation of the words would support a perjury prosecution then it satisfies Rule 603
Ex: "I ..... do hereby declare that the facts I am about to give are, to the best of my knowledge and belief, accurate, correct, and complete"
105
True or False:
this formulation of Rule 603 sufficient:
"I am a truthful person, and I will not tell a lie to say out of jail"
False
Ex: see tax fraud case in book
106
What are the limits on competence ? what rules?
Rule 601 - everyone is competent
Rule 602 - a witness can only testify to personal knowledge
Rule 603 - the witness must make an oath or affirmation to testify truthfully
Rule 601 - state law Rules of Decision
107
True or False:
| A clarification question during direct that requests a "yes" or "no" answer is always leading.
False - a "yes" is for clarification and does not always necessitate a correct answer or include the answer in the question itself.
108
What types of questions are permissible on Direct that are leading?
1. To establish pedigree
2. To direct to a time and place
3. To help a hesitant, confused, or trouble with recall
4. Hostile witness
109
What rule does objection over "form" derive from?
Rule 611 - The court should exercise reasonable control over the mode and order of examining witnesses to make: 1. procedures effective,
2. avoid wasting time, and
3. protect from harassment or undue embarrassment
110
True or false:
Rule 612 about refreshing a witness's memory only allows the attorney to use documents or items the witness wrote themselves.
False - the attorney may use ANY document so long as the witness previously stated it will help them remember the necessary information.
111
Under Rule 612 - present recollection refreshed - what must an attorney first get the witness to do before a document can be used to refresh their memory?
1. Witness must state they do not remember the answer to the question; and
2. seeing the writing will "refresh the recollection"
(laying foundation)
112
Can an adverse party under Rule 12 where a document is used to refresh the recollection of a witness BEFORE testifying then always be entitled to get the document?
Not always, the court may (though rarely) decide justice requires the party to have the document under Rule 612(a)(2) Scope
113
True or False:
Under Rule 612, the adverse party may admit a writing used for refreshment into evidence even if the writing is not otherwise admissible.
True - the adverse party can introduce the writing relevant to portions of it for assessing credibility, subject to a required in camera review for redaction if requested by producing party
114
Under what Rule should the witness given a document to refresh their memory put the document aside before testifying so they are testifying from memory and not from the document.
Rule 612 - Refreshing a witness's memory
115
Under Rule 612, if the adverse party admits a document used to refresh memory of a witness that is not admissible under any other rule, what is the limitation of the use of that evidence?
It only goes to the credibility of the witness, not to establishing substantive matters or elements of the claim or charge.
116
What are the ten techniques used to impeach or to respond to damaging testimony?
1. Exclude evidence through a Rule
2. Rule 403 objection
3. Complete the Story
4. Clarify ambiguity
5. Show impairment of perception or recollection
6. Demonstrate inconsistency
7. Rebut evidence
8. Show Bias
9. Attack Character for Truthfulness
10. Expert testimony about evidence
117
What are the Offensive techniques a party can employ to combat damaging testimony?
1. Rebut
2. Complete the Story
3. Clarify ambiguity
4. Expert testimony
118
What are the four defensive techniques used to combat damaging testimony?
5. impairment of perception
6. inconsistencies
7. Bias
8. attack character for truthfulness
119
What are the two ways a party can combat damaging testimony by appealing to the judge?
9. exclude evidence under a specific Rule
| 10. Exclude evidence under Rule 403 (unfair prejudice, confusion, or delay)
120
Refreshing Recollection Rule 612 Steps:
1. Witness says she can't recall
2. Identify "memory jogger" and ask witness if that might refresh
3. Show memory jogger to opposing counsel
4. Show memory jogger to witness
5. Take memory jogger away before testimony occurs or questions
6. Ask witness: "Did that refresh your memory?"
7. Ask witness to testify from recollection
121
An attorney may refresh recollection . . . (Rule 612)
1. Only on direct exam
2. Whenever the recollection is relevant
3. Whenever the judge grants permission
4. Only on Cross-Exam
Whenever the judge grants permission
122
Witnesses may refresh recollection from . . .
Anything (Rule 612)
123
Who may introduce a writing used to refresh recollection? . . .
Adverse Party (Rule 612)
124
The jury may use a writing introduced under Rule 612 . . .
ONLY To assess credibility
| not establish a controverted fact, to establish liability, or for ANY purpose
125
When refreshment occurs before testifying, the adverse party may examine the materials . . .
Rule 612
-When justice requires
126
When might you want to impeach your own witness?
hostile witness
adverse witness
draw the sting out
Rule 607: ANYONE may impeach a witness
127
Rule 611 Objections: They are not in the text of the rule, but based in it and often goes to the Form of the question:
pg. 200 text
1. Argumentative
2. Asked and Answered
3. Assumes a fact not in evidence
4. Beyond the Scope
5. Calls for narrative
6. Calls for Speculation
7. Compound Question
8. Harassing/Badgering the witness
9. Improper characterization or Misstates the testimony
10. Leading
11. Non-Responsive Answer
12. Vague
128
What is Rule 613 content?
Witness's Prior Statements
(a) when examining about a prior statement, the attorney need not show it to the witness unless upon request by adverse party
(b) extrinsic evidence of prior inconsistent statement is admissible ONLY if:
1. Wit. given opportunity to explain or deny statement and adverse party can examine witness about it and is given the evidence; or
2. If justice so requires.
NOTE: (b) does not apply to an opposing party's statement under 801(d)(2)
129
What is rule 608(a) ?
Reputation or Opinion Evidence:
Only after a witnesses' character has been attacked may a party admit opinion or reputation testimony about a witness's character for truthfulness
130
Rule 608(b)?
Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of conduct to support or attack the witness' character for truthfulness
***But on cross exam, with a good faith belief, the court may allow them to be inquired into if they are probative of the character for truth or untruthfulness of (1) the witness; or (2) another witness who the character witness is testifying about.
131
What is Rule 404(a)?
(1) Prohibited uses: Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
. . .
(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under rules 607(impeach), 608(character), and 609(impeach by crime).
132
Under rule 609(a) general, what is the purpose the criminal conviction may be used for:
(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction: . . .
133
Under Rule 609(a)(1)(A) what is the rule for a felony conviction for attacking a witness's character for truthfulness?
(A) MUST be admitted, subject to Rule 403, in a civil case or in a criminal case in which the WITNESS IS NOT a defendant; and . . .
(subject to 403)
134
Under Rule 609(a)(1)(B) what is the rule for a felony conviction for attacking the defendant's character for truthfulness?
(B) MUST be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and
(Reverse of 403)
135
Under 609(a)(2) what is the rule for any crime, regardless of punishment being admitted for attacking the witness's character for truthfulness notwithstanding Rule 404(a)?
(2) . . . the evidence MUST be admitted if the court can readily determine that establishing the ELEMENTS of the crime required proving—or the witness’s admitting—a dishonest act or false statement.
(403 DOES NOT APPLY)
136
What are the time limit rules under Rule 609(b) for using criminal conviction evidence to attack a witness's character for truthfulness?
If any of the convictions in 609(a) were more than 10 years ago, or release from confinement was more than 10 years ago, whichever is later, the probative value MUST substantially outweigh the prejudicial effect (REVERSE of 403)
AND
the adverse party is given written notice of intent to use it so they have fair opportunity to contest its use.
137
What is the exception to Rule 609 in 609(c) on prior criminal convictions?
609(c) Pardons, annulments, and certificates of rehabilitation are not admissible so long as person was not convicted of a later felony for more than one year; AND same but based on finding of innocence.
138
Factors in Rule 609(a)(1)(b) determining whether probative value outweighs prejudice effect (reverse of 403)?
1. Impeachment value of prior crime
2. Timing of prior conviction and subsequent charge
3. Similarity between prior crime and charged crime
4. Importance of Defendant’s testimony
5. Centrality of Credibility
139
What is the 609(d) rule regarding juvenile convictions?
(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:
(1) it is offered in a criminal case;
(2) the adjudication was of a witness OTHER THAN the DEFENDANT;
(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
(4) admitting the evidence is necessary to fairly determine guilt or innocence.
140
What is the rule under 609(e) regarding pendency of an appeal and criminal convictions?
(e)Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.
141
Holding of State v. Kubat relevant to Rule 609 and 613 (Idaho)?
Holding: Rule 609 applies when one attacks a witness’s general “credibility” but not when a party seeks to “contradict his specific statement”
o Statement relating to prior criminal conviction was admissible under Rule 613 for prior inconsistent statement
142
What type of misdemeanors under Rule 609 for the purpose of attacking truthful character are admissible?
misdemeanors or felonies a judge can readily determine that establishing the elements of the crime required proving:
--dishonest act or false statement
143
What is Rule 610 religious beliefs or opinions?
Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.
144
What is Rule 106?
Rule of Completeness:
If a party introduces all or part of a writing or statement, the adverse party may require immediate introduction of any other part - OR any other writing or statement - "that in fairness ought to be considered at the same time"
145
What rule would oral statements come in that in fairness aught to be considered together?
611 - controlling mode of examinations (106 only goes to written or recorded statements)
146
What are the four categories of common cases where 405 will apply as character/reputation are elements?
Defamation
Child Custody
Negligent Entrustment
Criminal Entrapment
147
Under a character evidence issue, what are the two rules that provide exceptions that go to propensity for truthfulness?
608(reputation, opinion, specific instances) & 609(criminal conviction)
148
What is Rule 404(a)(1) prohibited uses
Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
149
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True or False:
Under 405(a) many courts have found that posing hypothetical questions to a reputation character witness that assumes the D's guilt are not proper and should not be allowed
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True
150
What is Rule 404(b) title
Character Evidence - Crimes, Wrongs, or Other Acts
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What is Rule 404(b) content?
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Applies to Criminal AND Civil cases
May be admissible for another purpose:
-Motive
-Intent
-Absence of
-Mistake of lack of Accident
-Identity
-Common Plan/scheme
-Opportunity
-Preparation
-Knowledge
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152
What are the examples of purposes that 404(b) other acts or crimes are admissible for as an exception to propensity evidence?
- Motive
- Intent
- Absence of Accident or
- Mistake
- Identity
- Common Plan/Scheme
- Opportunity
- Preparation
- Knowledge
153
What is the limitation on 404(b) in a criminal trial?
The prosecutor must provide:
reasonable notice of general nature of any 404(b) evidence intended to offer at trial; and
-notice is given before trial, or during trial IF the Court excuses it for Good Cause
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What is the four step Rule 404(b) test for admitting evidence?
1. Similarity of Acts?
2. Proximity of Events in Time?
3. Proper Purpose (listed in 404(b))?
4. Does it pass 403?
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What is Rule 406 content?
Habit or Routine Practice:
-- Acted in accordance with habit on particular occasion
- MAY admit regardless of whether it is corroborated
- Habit =
o Regular and automatic responses
o Specific Stimuli
o Frequency
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What is a Habit?
Specific repeated responses to a particular situation or stimuli
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What is Rule 405?
Methods of Proving Character:
(If it comes in under 404(a)(2) this rule describes manner of how character evidence is admitted)
-Reputation or Opinion on Direct
-Specific Acts on Cross
-Specific Acts on Direct IF element of the crime/claim
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What are the three things the court focuses on with Habit evidence Rule 406?
1. Specificity of conduct
2. Distinctiveness of the situation producing conduct; and
3. Regularity of Conduct
