Pre-Midterm Flashcards
Memorize the Rules (125 cards)
1
Q
Rule 103 (Title)
A
Rulings on Evidence
2
Q
Rule 103(a)
A
Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:
3
Q
Rule 103(a)(1)
A
If the ruling admits evidence, a party, on the record:
4
Q
Rule 103(a)(1)(A)(B)
A
(A) timely objects or moves to strike; and
(B) states the specific ground, unless it was apparent from the context; or
5
Q
Rule 103(a)(2)
A
If the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.
A formal offer of proof is unnecessary if “the substance” of the evidence is apparent from the context.
6
Q
Rule 103(b)
A
Not Needing To Renew an Objection or Offer of Proof. 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.
7
Q
Rule 103(c)
A
Courts Statement About the Ruling; Directing an Offer of Proof.
The Court may make any statement about:
The character or form of the evidence,
the objection made, and
the ruling.
The Court may direct that an offer of proof be made in question-and-answer form.
8
Q
Rule 103(d)
A
Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct jury trial so that inadmissible evidence is not suggested to the jury by any means.
9
Q
103(e)
A
Taking Notice of Plain error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.
10
Q
Rule 101 (Title)
A
Scope; Definitions
11
Q
101(a)
A
Scope. These rules apply to proceedings in United States courts. The specific courts proceedings to which the rules apply, along with exceptions, are set out in Rule 1101.
12
Q
101(b)
A
Definitions: In these rules:
(1) “civil case” means a civil action or proceeding;
(2) “criminal case” includes a criminal proceeding;
(3) “public office” includes a public agency;
(4) “record” includes a memorandum, report, or data compilation;
(5) a “rule prescribed by the Supreme Court” means a rule adopted by the Supreme Court under statutory authority; and
(6) A reference to any kind of written material or any other medium includes electronically stored information.
13
Q
105(Title)
A
Limiting Evidence That is Not Admissible Against Other Parties or For Other Purposes
14
Q
105(Rule)
A
Admissible evidence admitted against a party or for a purpose–but not against another party or for another purpose–
on timely request, the Court must restrict the evidence to its proper scope and instruct the jury accordingly.
15
Q
Rule 401(Title)
A
Test for Relevant Evidence
16
Q
Rule 401 (a)
A
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
17
Q
Rule 401(b)
A
the fact is of consequence in determining the action
18
Q
Rule 402 (Title)
A
General Admissibility of Relevant Evidence
19
Q
Rule 402 (definition)
A
Relevant Evidence is admissible unless any of the following provides otherwise:
- The United States Constitution
- A federal Statute;
- These rules; or
- Other rules prescribed by the Supreme Court.
Irrelevant evidence is not admissible
20
Q
Rule 403 (Title)
A
Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
21
Q
Rule 403 (Definition)
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.
22
Q
Rule 404 (Title)
A
Character Evidence; Crimes or Other Acts
23
Q
Rule 404 (a)(1)
A
Character Evidence. (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
24
Q
404(a)(2)
A
Exceptions for a defendant or victim in a criminal case. The following exceptions apply in a criminal case:
25
404(a)(2)(A)
A defendant may offer evidence of the defendant's pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
26
404(a)(2)(B)
Subject to the limitations in rule 412, a defendant may offer evidence of an alleged victim's pertinent trait, and if the evidence is admitted, the prosecutor may:
27
404(a)(2)(B)(i-ii)
(i) offer evidence to rebut it; and
| (ii) offer evidence of the defendant's same trait; and
28
404(a)(3)
Exceptions for a witness. Evidence of a witness's character may be admitted under rules 607, 608, and 609
29
404(b)
Crimes, Wrongs, or Other Acts
30
404(b)(1)
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order tostados how that on a particular occasion the person acted in accordance with the character.
31
404(b)(2)
(2) Permitted Uses; Notice in a Criminal Case. This Evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:
32
404(b)(2)(A)-(B)
(A) provide reasonable notice of the general nature of any such evidence the the prosecutor intends to offer at trial; and
(B) Do so before trial--or during trial if the court, for good cause, excuses lack of pretrial notice
33
Rule 405 (Title)
Methods of Proving Character
34
405(a)
(a) By reputation or Opinion.
When evidence of a person's character or character trait is admissible, it may be proved by testimony about the person's reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person's conduct.
35
405(b)
(b) By Specific Instances of Conduct.
When a person's character or character trait is an essential element of charge, claim, or defense, the character trait may also be proved by relevant specific instances of the person's conduct.
36
Rule 407 (Title)
Subsequent Remedial Measures
37
407(Definition)
When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:
- negligence;
- Culpable Conduct;
- a defect in a product or its design; or
- a need for a warning or instruction
38
Rule 408 (Title)
Compromise Offers and Negotiations
39
408(a)
Prohibited Uses.
Evidence of the following is not admissible--on behalf of any party--either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:
40
408(a)(1)
(1) furnishing, promising, or offering--or accepting, promising to accept, or offering to accept--a valuable consideration in compromising or attempting to compromise the claim; and
41
408(a)(2)
(2) Conduct or a statement made during compromise negotiations about the claim--except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.
42
408(b)
Exceptions:
The Court may admit this evidence for another purpose, such as proving a witness's bias or prejudice, negating a contention of undue delay, or proving an effort tot obstruct a criminal investigation or prosecution.
43
Rule 409 (Title)
Offers to Pay Medical and Similar Expenses
44
409 (definition)
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 for the injury.
45
Rule 410 (Title)
Pleas, Plea Discussions, and Related Statements
46
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:
47
410(a)(1-4)
(1) a guilty plea that was later withdrawn;
(2) a nolo contendere plea;
(3) a statement made during proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; *or*
(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulting in a later-withdrawn guilty plea.
48
Rule 410(b)
Exceptions.
| The Court may admit a statement described in Rule 410(a)(3) or (4):
49
410(b)(1)-(2)
(1) in any proceeding in which another statement made during the same plea or plea discussion has been introduced, if in fairness the statements ought to be considered together; *or*
(2) in a criminal proceeding for perjury or false statement, if the defendant made the statements under oath, on the record, and with counsel present.
50
Rule 601 (Title)
Competency to Testify In General
51
Rule 601(Definition)
Every person is competent to be a witness unless these rules provide otherwise. 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.
52
Rule 602 (Title)
Need for Personal Knowledge
53
Rule 602 (Definition)
A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony. This rule does not apply to a witness's expert testimony under Rule 703.
54
Rule 603 (Title)
Oath or Affirmation to Testify Truthfully
55
603(Definition)
Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness's conscience.
56
Rule 604 (Title)
Interpreter
57
604 (Definition)
An interpreter must be qualified and must give an oath or affirmation to make a true translation.
58
Rule 605 (Title)
Judge's Competency as a Witness
59
605 (Definition)
The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.
60
Rule 606( Title)
Juror's Competency as A Witness
61
606(a)
(a) At the Trial.
A juror may not testify as a witness before the 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.
62
606(b)
During an inquiry into the Validity of a Verdict or Indictment.
63
606(b)(1)
(1) Prohibited Testimony or Other Evidence.
During inquiry of validity of verdict or indictment, juror may not testify about any statements made during deliberations or any effects into jury's vote. No affidavits or evidence of juror's statements admissible
64
606(b)(2)(A)-(C)
Exceptions.
A juror may testify about whether:
(A) Extraneous prejudicial information was improperly brought to Jury's attention;
(B) outside influence was improperly brought to bear on any juror; *or*
(C) a mistake was amde in entering verdict on verdict form.
65
Definitions: Timely
An objection can still be deemed “timely” if it is raised within a sufficient time (quickly as possible) after the proffer of testimony so as to allow the district court an adequate opportunity to correct any error
66
"Substantial Right" (103)
A reasonable probability that if the judge had made the correct ruling, he would have effectuated a different outcome to the case. Otherwise it is but a harmless error.
67
Tactics: Difference in Applicable Analysis for 407 & 408:
Prior inconsistent statements cannot be used to impeach a witness under 408… but CAN be under 407.
68
Rule 411: Title
Liability Insurance
69
411: Definition
Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully.
But the Court may admit this evidence another purpose such as:
. Proving a witness’s bias or prejudice
. Proving agency, ownership, or control
70
Tactics: 411: Aspects Raised (2)
(1) Only bars evidence of insurance if it is offered to prove negligence or some other wrongful behavior.
(2) indemnity agreements:
- One party agrees to reimburse another party for damages if a specified form of liability arises.
71
Rule 407 Exceptions:
The Court may admit Subsequent Remedial Evidence for another purpose, such as impeachment or --if disputed-- proving ownership, control, or the feasibility of precautionary measures.
72
What are the two parts for a "Plea Discussion"?
(A) the defendant displayed an actual subjective expectation to negotiate a plea and
(B) the expectation was reasonable given the totality of the objective circumstances.
73
Rule 611 (Title)
Mode and Order of Examining Witnesses and Presenting Evidence
74
Rule 611(a)
Control by the Court; Purposes.
The Court should exercise reasonable control over the mode and order of examining witness and presenting evidence so as to:
(1) Make those procedures effective for determining the truth;
(2) Avoid wasting time; *and*
(3) Protect witnesses from harassment or undue embarrassment.
75
611(b)
Scope of Cross-Examination.
Cross-Examination should not go beyond the subject matter of the direct examination and matters affecting the witness credibility.
Court may allow inquiry into additional matters as if on direct examination
76
611(c)
Leading Questions.
Leading questions should not be used on direct examination except as necessary to develop the witness's testimony.
Court should allow leading questions:
(1) on cross-examination; *and*
(2) When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.
77
Four Contexts in Which Leading Questions are Allowed:
1. To Establish Pedigree Information;
2. To Help a Witness who is Hesitant, Confused, or Nervous Get Back on Track;
3. To Direct a Witness's Attention to a Relevant Place and Time;
4. When the Witness is Hostile.
78
611(b) Provisions: (Three Points)
1. Lawyers conducting cross-exams usually cannot ask a witness about topics or incidents that were not addressed in direct exam.
2. Rule gives judge discretion to expand scope of cross-exam.
3. Parties are allowed on cross-exam to ask questions affecting the witness's credibility. (Impeaching)
79
Rule 614 (Title)
Court's Calling or Examining a Witness
80
614(a)
Calling.
| The Court may call a witness on its own or at a party's request. Each party is entitled to cross-examine the witness.
81
614(b)
Examining.
| The Court may examine a witness regardless of who calls the witness
82
614(c)
Objections.
A party may 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.
83
Rule 615 (Title)
Excluding Witnesses
84
615 (defined)
At a party's request, the court must order witnesses excluded so that they cannot hear other witnesses' testimony.
Or the Court may do so on its own, but this rule does authorize excluding:
85
615(a)
a party who is a natural person;
86
615(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;
87
615(c)
a person whose presence a party shows to be essential to presenting the party's claim or defense; *or*
88
615(d)
a person authorized by statute to be present
89
615: Three Important Provisions:
1. Rule can be invoked by party or judge
2. Rule gives the judge no discretion: once a party makes a request to exclude a witness, the judge *must* exclude them from the courtroom.
3. Rule makes exceptions for several categories of witnesses who cannot be barred from the courtroom.
90
612 (Title)
Writing Used to Refresh A Witness's Memory
91
612(a)
Scope.
This rule gives an adverse party certain options when a witness uses a writing to refresh memory:
(1) while testifying; *or*
(2) Before testifying, if the court decides that justice requires a party to have those options
92
612(b) (Core Language)
Adverse Party's Options; Deleting Unrelated Matter.
Unless 18 U.S.C. § 3500 provides otherwise, an adverse party has a right:
(1) to Inspect any writing the witness uses to refresh recollection;
(2) Cross-examine the witness on the writing; *and*
(3) Introduce the relevant portions of the writing into evidence.
93
612(c)
Failure to Produce or Deliver the Writing.
If a writing is not produced or delivered as ordered, the Court may issue any appropriate order.
If the prosecution does not comply, the court must strike the witness's testimony or --if justice requires-- declare a mistrial.
94
Rule 607 (Title)
Who may Impeach a Witness
95
607 (Definition)
Any party, including the party that called the witness, may attack the witness's credibility.
96
607 (Offensive Tactics)
1. Rebut the Evidence
2. Complete the Story
3. Clarify the Ambiguous Testimony
4. Introduce Expert Testimony
97
607 (Defensive Tactics)
1. Show Impairment of Perception or Recollection
2. Demonstrate Inconsistencies
3. Show Bias
4. Attack the Witness's Character for Truthfulness
98
607 (Referee or Judge Tactics)
1. Exclude the Evidence Under a Specific Rule
| 2. Exclude the Evidence by Demonstrating Unfair Prejudice, Confusion, Or Delay.
99
Rule 613 (Title)
Witness's Prior Statement
100
613(a)
Showing or Disclosing the Statement During Examination.
When examining a witness about the witness' prior statement,
- a party need not show it or disclose its contents to the witness;
-but the party *must* on request, show it or disclose its contents to an adverse party's attorney.
101
613(b)
Extrinsic Evidence of a Prior Inconsistent Statement.
Extrinsic evidence of a witness's prior inconsistent statement is admissible only if:
-The witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, *or*
-if justice so requires
102
Rule 608 (title)
A witness's Character for Truthfulness or Untruthfulness
103
608(a)
Reputation or Opinion Evidence:
- A witness's credibility may be attacked or supported by testimony about the reputation that witness has for being truthful/untruthful.
- However, evidence of truthful character is only admissible after the witness's character for untruthfulness has been attacked.
104
608(b)
Specific Instances of Conduct
Except for a criminal conviction under 609, extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's truthful character.
The court may on cross-exam, allow them to be inquired into if they are probative of the character for true/untruthfulness of:
-the witness; *or*
-another witness whose character the witness being crossed has testified about.
105
Rule 608 establishes 4 points:
1. A party may ask a witness about “specific instances of conduct” on cross to suggest witness has untruthful character;
2. Attorneys must limit these questions to actions that are “probative of the witness’s character for truthfulness or untruthfulness.” Cannot bring other undesirable behavior in the mix if it is not probative to the matter at hand. (drunkenness, slob, etc.)
3. Judge has discretion to prevent questions cross-examining witness about specific acts that reveal untruthful character. 608(b) says the court “may” allow these questions. Thus, Judge has discretion under 403, 611, and 608 to bar or limit evidence
4. Bars proof of these specific instances by extrinsic evidence. Thus, attorneys may cross examine witnesses about acts that suggest untruthfulness, but may not introduce extrinsic evidence of those acts, such as disciplinary reports or testimony from other witnesses.
106
Before asking a witness about a specific incident, the attorney must have _______ belief that the incident occurred
Good Faith
107
Rule 609 (title)
Impeachment by Evidence of a Criminal Conviction
108
609(a)
In general. These rules may apply to attaching a witness's character for truth/un by evidence of a criminal conviction:
109
609(a)(1)
For a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year,
110
609(a)(1)(A)-(B)
(A) The evidence *must* be admitted, subject to 403, in a civil or criminal case in which witness is not a defendant; *and*
(B) *must* be admitted in a criminal case in which the witness is a defendant, if the probative value outweighs its prejudicial effect to that defendant; *and*
111
609(a)(2)
for any crime regardless of the punishment, 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.
112
609(b)(1-2).
Limit on Using the Evidence after 10 Years:
If more than 10 years have passed since the witness's conviction or reals from confinement, whichever is later, evidence is only admissible if:
(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.
113
609(c)(1-2)
Evidence of a conviction is not admissible if:
(1) the conviction has been pardoned, annulled, or defendant has been given certificate of rehabilitation *and* not been convicted of a later crime punishable by death or by imprisonment of more than one year; *or*
(2) the conviction has been pardoned, annulled, or other equivalent procedure based on a finding of evidence.
114
Rule 610 (title)
Religious Beliefs or Opinions.
115
610 (def)
Evidence of a witness's religious beliefs or opinions is not admissible to attack or support a witness's credibility.
116
Rule 613 (Case Law Interpretations)
Impeaching a Witness with Prior Inconsistent Statements.
| While the rule doesn't explicitly allow this, case law recognizes that this is the core purpose of the rule.
117
Is introducing evidence of a person's religion admissible to prove something particular to the case such as motive?
Yes.
118
Does Aggressively Cross-examining the witness such that the testimony casts doubt on the credibility or character of that witness an example of the witness's character being attacked?
No. Aggressively cross-examining a witness about her testimony, or pointing out inconsistencies in that testimony, does not attack the witness’s general character for truthfulness. Casting doubt on the witness testimony or suggesting that she lied on direct exam just relate to the case at hand, they do not attack the character for truthfulness.
119
Rule 608 only allows general _________ or _________ evidence of Character, not giving specific instances of conduct related to a witness’s truthfulness
Reputation; Opinion
120
If an inconsistency relates solely to a ____________, then the potential for prejudice, delay, or confusion substantially outweighs the probative value of admitting extrinsic evidence of the previous statement.
Collateral Issue
121
Collateral Matter (Defined)
relevant to a case solely because it impeaches a witness
122
Non-Collateral Matter
proves a fact in consequence other than impeachment. If it proves a fact of consequence and impeaches a witness, it is non-collateral.
123
Who may Impeach a Witness?
Rule 607: Any party, including the party that called the witness, may attack the witness credibility
124
How is a Witness attacked for Impeachment?
An attorney may attack capacity, perception, memory, and truth-telling.
125
Factors in 609(a)(1)(B) determination of whether probative value outweighs prejudicial effect (reverse 403)
- Impeachment value of prior crime
- Timing or prior conviction and
subsequent charge
- Similarity between prior crime and
charged crime
- Importance of Defendant’s testimony
- Centrality of Credibility
