Cooper Evidence 2009

Front 1

What does relevant evidence mean?

Back 1

Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. (FRE 401)

Front 2

Does relevant evidence suddenly become irrelevant?

Back 2

Relevant evidence does not suddenly become “irrelevant”; it becomes inadmissible or unfairly prejudicial.

Front 3

What is an evidential hypothesis?

Back 3

An evidential hypothesis contains one or more general premises- a general proposition about the ways of the world or human nature.

Front 4

What is weight?

Back 4

Weight means the aggregate probative worth that the factfinder assigns to the proof in the case.

Front 5

What is sufficiency?

Back 5

Sufficiency means there must be sufficient evidence to satisfy the standard of proof.

Front 6

What is FRE 406?

Back 6

Habit; Routine Practice

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

Front 7

What is habit?

Back 7

Habit describes one's regular response to a repeated specific situation, or the person's regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand-signal for a left turn, or of alighting from railway cars while they are moving. The doing of the habitual acts may become semi-automatic.

Front 8

What is character?

Back 8

Character is a generalized description of one's disposition, or of one's disposition in respect to a general trait, such as honesty, temperance, or peacefulness.

Front 9

What does FRE 402 say?

Back 9

Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

Front 10

What does FRE 403 say?

Back 10

Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Front 11

What are the FRE 405 Methods of Proving Character?

Back 11

(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.

Front 12

In FRE 412, what evidence is generally inadmissible?

Back 12

The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):

(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(2) Evidence offered to prove any alleged victim's sexual predisposition.

Front 13

In rule FRE 412, what are the exceptions to evidence being inadmissible?

Back 13

(b) Exceptions.

(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:

(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;

(B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and

(C) evidence the exclusion of which would violate the constitutional rights of the defendant.

(2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim.

Front 14

Under FRE 413, is evidence of the defendant's commission of another offense or sexual assault admissible?

Back 14

Yes.

(a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.

Front 15

Under FRE 414, in a criminal case, is evidence of the defendant's commission of another offense or offenses of child molestation is admissible?

Back 15

(a) In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

Front 16

What does FRE 415 say about civil cases and Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation?

Back 16

(a) In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party's commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules.

Front 17

What are three ways to describe habit?

Back 17

1. specific behavior under specific circumstances

2. degree to which the behavior is automatic, unreflective

3. regularity

Front 18

What are the two requirements for modus operandi evidence to be admitted?

Back 18

1. need to have substantial similarity between the prior crime and the current crime

2. Needs to be unique, distinctive, and particular

Front 19

FRE 803 definition of Present sense impression.

Back 19

Present sense impression is a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

Front 20

FRE 803 definition of Excited utterance.

Back 20

Excited utterance is a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Front 21

FRE 803 definition of Then existing mental, emotional, or physical condition.

Back 21

Then existing mental, emotional, or physical condition is a statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

Front 22

FRE 803 definition of statements for purposes of medical diagnosis or treatment.

Back 22

Statements for purposes of medical diagnosis or treatment are statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

Front 23

FRE 803 definition of statements for Recorded recollection.

Back 23

Recorded recollection is a memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

Front 24

FRE 803 definition of Records of regularly conducted activity.

Back 24

Records of regularly conducted activity is a memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

Front 25

FRE 803 definition of Absence of entry in records kept in accordance with the provisions of paragraph (6).

Back 25

Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

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FRE 803 definition of Public records and reports.

Back 26

Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

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FRE 803 definition of Records of vital statistics.

Back 27

Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.

Front 28

FRE 803 definition of Absence of public record or entry.

Back 28

Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.

Front 29

FRE 803 definition of Records of religious organizations.

Back 29

Records of religious organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization

Front 30

FRE 803 definition of Marriage, baptismal, and similar certificates.

Back 30

Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.

Front 31

FRE 803 definition of Family records.

Back 31

Family records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.

Front 32

FRE 803 definition of Records of documents affecting an interest in property.

Back 32

Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.

Front 33

FRE 803 definition of Statements in documents affecting an interest in property.

Back 33

Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.

Front 34

FRE 803 definition of Statements in ancient documents.

Back 34

Statements in ancient documents. Statements in a document in existence twenty years or more the authenticity of which is established.

Front 35

FRE 803 definition of Market reports, commercial publications

Back 35

Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

Front 36

FRE 803 definition of Learned treatises.

Back 36

Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

Front 37

FRE 803 definition of Reputation concerning personal or family history.

Back 37

Reputation concerning personal or family history. Reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history.

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FRE 803 definition of Reputation concerning boundaries or general history.

Back 38

Reputation concerning boundaries or general history. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located.

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FRE 803 definition of Reputation as to character.

Back 39

Reputation as to character. Reputation of a person's character among associates or in the community.

Front 40

FRE 803 definition of Judgment of previous conviction.

Back 40

Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.

Front 41

FRE 803 definition of Judgment as to personal, family or general history, or boundaries.

Back 41

Judgment as to personal, family or general history, or boundaries. Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.