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116 Cards in this Set

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What 4 proceedings do the federal rules of evidence apply to?
1. All civil and criminal trials and proceedings in federal courts
2. Bankruptcy proceedings
3. Admiralty and maritime cases
4. Contempt proceedings (except for summary contempt)
When are the FRE not applicable?
1. Preliminary questions of fact decided by the judge.
2. Grand jury proceedings
3. Probation hearings
4. sentencing
5. Issuance of warrants
6. bail hearings
7. preliminary hearings
8. extradition hearings
9. hearings before administrative agencies
When does KS apply the KS rules of evidence?
1. every proceeding both criminal and civil in a court in which evidence is produced - EXCEPT where relaxed by some other rule or statute
2. Do apply in preliminary hearings
3. Do not apply in Worker's comp proceedings
5. Rules relaxed at the sentencing phase of trial.
What is the golden rule of evidence?
All evidence offered must, at a minimum be relevant to be admissible; irrelevant evidence is excluded (FRE 402.) Evidence that is relevant is admissible, unless excluded by some other rule.
What is the definition of relevancy?
FRE 401 - Evidence is relevant if the offered evidence has any tendency to prove/disprove a fact of consequence (material fact) - a very liberal test.

The substantive law determines whether a fact is material, not the rules of evidence.
What are some examples of material facts?
1. pleadings
2. defenses
3. elements (torts-crimes)
4. background evidence of witnesses
5. impeachment
6. relevant statutes
What is the FRE 403 balancing test?
Trial court has discretion to exclude relevant evidence.

Rule 403: relevevant evidence may be excluded at the discretion of the court, if the probative value (relevancy) of evidence is substantially outwieghed by the danger or risk of 6 trial concerns.
What are the 6 trial concerns regarding the 403 Balancing test?
1. Unfair prejudice
2. Confuse the jury
3. mislead the jury
4. waste of time.
5. undue delay
6. unnecessarily cumuliative.
What concern does Kansas add to the 403 balancing test?
- unfair and harmful surprise

(this is not a proper objection for federal, but is for KS)
What are the other 403 Rules?
1. The court has considerable discretion, whether to admit or exclude evidence under Rule 403, subject only to an abuse of discretion standard at appeal.

2. A heavy burden is on the objecting party to convince the court that the relevant evidence shoudl be excluded.

3. The fact that evidence is prejudicial to a party does not warrant exclusion. Evidence must be unfairly prejudicial. (must be unfair)

4. Most 403 objections are properly overruled.

5. Rule 403 applies to all forms of evidence, including real, documentary, and testimonial (direct and cross-exam) evidence.
What are relevancy problems with regards to similar accidents?
In negligence and product cases, evidence of prior or subsequent accidents may be erelvant to prove:
1. that a dangerous condition existed;
2. that a product is defective;
3. the cause of an accident; or
4. notice that a dangerous condition existed, provided the other accidents occurred under subjstantially similiar conditions.

Court has discretion to exclude other accidents under Rule 403
What are relevancy problems with regards to absence of other accidents?
May be relevant to rebut a claim of:
1. a dangerours condition
2. a defective product
3. causation
4. a claim of notice or knowledge provided the conditions are substantially similar.

Prior accidents, defects, mechanical failures under different conditions or at remote times are irrelevant and excluded.
What are the relevancy problems with regards to consciousness of guilt?
Conduct which tends to show a person's consciousness of guilt may be admissible as evidence of a guilty mind.

There is no hearsay problem as they are non-assertive conduct.

Examples: Flight from the scene of a crime, attempted suicide, hiding from the police, false alibiles, threats against witnesses, escape, etc.
What are the relevancy problems with regards to out-of-court experiements/demonstrations?
May be relevant to show the cause of an accident provided the accident and experiment occurred under substantially similiar conditions.
Under FRE 611(a), what is the role of the judge at trial?
The judge has a duty and discretion to exercise reasonable control over the mode and examination of witnesses and the presentation of evidence.
Under rule 103(c), what is the role of the judge at trial?
In jury trials, the judge has a duty to prevent inadmissible evidence from being presented to the jury.
Under rule 104(c) what is the role of the judge at trial?
Hearings on the admissiblity of confessions, must be conducted outside the presence of the jury. (This is automatic in federal court)

In Kansas, the request to be outside the presence of the jury is requried.
(Role of the judge at trial) When are hearings on other preliminary matters conducted outside the presence of the jury?
- When they are required by the "interests of justice" (discretion of the court)
- When the accused testifies and so requests (mandatory)
(Role of the judge at trial) What is the rule of limited admisibility?
FRE 105
- If evidence is admissible against only one party or for only one purpose, but not admissible against another party or for another purpose, the court, upon request, shall give a limiting instruction to the jury restricting its proper scope.
When is a limiting instruction given?
The best practice is to give a limiting instruction when the evidence is admitted, but federal courts give discretion to trial court to dealy the giving of the instruction.

If no request for a limiting instruction is made, it is generally waived. (Federal and KS rule)
What is the rule of completeness?
FRE 106
- When a writing or recording (or part) is introduced in evidence, the adverse party may require the introduction immediately of any other part (or any other writing or recorded statement) which in fairness ought to be considered with it.

This rule does not apply to oral conversations, only writings and recordings (under FRE) - Kansas ecompasses oral conversations too.
What is the CAP rule and when does it apply?
The judge alone decides 3 preliminary matters (independent of the jury):
1. C - competency of a witness to testify (legally qualified) - lay and expert witnesses - FRE do not apply.
2. A- Admissibility of Evidence - (Example: Whether an out-of-court statement is hearsay or meets a hearsay exception - FRE do not apply)
3. P - privilege - FRE apply.
What is the rule regarding examinationo f witnesses by the judge?
FRE 614- The trial judge may call witnesses to testify, and all parties are entitled to question such court witnesses by leading questions, and the trial court may question any witness in a civil or criminal proceeding.
What is the rule of subsequent remedial measures (FRE 407)?
Evidence of post-accident measures by a defendant is inadmissible to prove the defendant was negligent or at fault, or a product was defective in a strict liability case.
What are 6 remedial measures?
1. repairs
2. changes in comany policy
3. firing of an employee
4. installing safety devices
5. replacing defective floor, tile, or rug
6. design changes in a product
When is evidence of post-accident repais/meaures admissible?
When the subsequent measure is offered for some "other purpose" other than to prove the defendant was negligent or culpable, or a product is defective (FICO)
What does FICO stand for?
F - Feasibility - If the defendant claims it was not feasible to prevent the accident, evidence of subsequent remedial measures is admissible.

I- Impeachment - Impeachment use is generally only admissible if Defendant makes factual assertions that are contradicted by subsequent measures.

C - control - evidence of subsequent measures to prove Defendant's control of property which Defendant disputes.

O - Ownership. Evidence of D's ownership of property if the D disputes ownership.
Are pre-accident measures admissible?
Yes, if relevant - cannot be opened by the P only by the D.
What is the rule regarding compromise/settlement offers? (FRE 408)
Evidence of proposed or accepted compromise or settlement is not admissible to prove a civil cliam is: (1) valid, or the claim is (2) invalid, or (3) the amount of damages owed.

Evidence of conduct and admisssions made in compromise negotiations are excluded.

Evidence of offers to compromise are excluded only if there is a dispute at the time of the offer between the parties about either who was at (1) Fault; (the amount of damages.

An admission of fault during negotiations not involving the validty of the claim nor amount of claim is admissible.

On the issue whether compromise negotiations existed = trial (court decides) , not the jry.
What is the Kansas Rule reguarding compromise/settlement offers?
Only the offer to settle/compromise is excluded. Admissions of fault and statements of fact are admissible.
What are the rules regarding offers to plead guilty/nolo contendre - criminal cases under FRE 410
Evidence of the following is NOT admissible against a D who participated in pleas negotiations:
(1) plea of guilty, later withdrawn;
(2) offer to plead nolo contendre;
(3) any statements by D during plea negotiations.
What are the 2 special rules regarding guilty/nolo contendre pleas?
1. If the D pleads nolo contendre, the plea is inadmissible in a subsequent civil trial to prove an element of the civil case.
2. But, if D pleads guilty in a criminal case, the guilty plea may be admissible as an admission in a subsequent civil or criminal case, or at least for impeachment purposes, if the D testifies.
What is the Kansas rule regarding guilty/nolo contendre pleas?
Evidence of a guilty plea that is withdrawn is admissible in a subsequent proceedings.
What is the "Good Samaritan Rule"?
Evidence that a party has furnished or offered to pay medical, hospital, or similar expenses is inadmissible to prove the party's fault or liability.
Does an admission of fault during an offer to pay medical expenses preclude admissibilty?
The statement of fault is admissible. The offer to pay medical bills is excluded. (redacted)
What is the Kansas rule regarding offers to pay medical expenses?
Any payment or offer made from any humanitarian motive is inadmissible, not just medical expenses.
Is evidence of liability insurance admissible? (FRE 411)
Proof of liability insurance is only admissble to show things such as proof of agency, ownership, control, or bias, prejudice, or interest of a witness. It is admissible to prove person was negligent or not at fault.
Does an admission of fault during a statement of insurace preclude admissibilty?
The statement of fault is admissible, the statement of insurance is redacted.
Are policy limits admissible?
NO! Never.
Is pre-trial discovery of coverage allowed?
Yes.
Can potential jurors be questioned regarding insurance prejudices?
YES!
Can insurance coverage be admitted if the Defendent gives a false impression that he doens't have it?
Yes. If a defendant gives the false impression that he lacks insurance coverage or lacks the resources to pay nay judgement (poverty plea) evidence that he has insurance coverage may be admitted.)
What is habit evidence? (FRE 406)
Evidence of the habit of a person or the routine practice of an organization is admissible to prove that the person or organization on a particular occasion acted in conformity with the habit or routine practice.
How is habit defined?
A person or organization's repeated and regular response to a given situation (specific acts of consistent behavior over a period of time)
What are the foundation requirements for foundation evidence?
The proponent needs to show:
1.The person's conduct was done a sufficient number of times to qualify as habit (numerous enough to be systematic, more than a few times) AND
2. The person's conduct was consistent, or without much variation or semi-automatic.
What are examples of habit evidence?
1. Person alwyas goes down particular stairs two at a time
2. person always observes the speed limit
3. person always drives car with or without seatbelts
4. regular practice of a physician to warn patients of potential risk of surgery
5. The D for years, drank a bottle of whiskey every evening after work.
What are some examples of not habit evidence?
1. That a person is a safe or careful driver.
2. Person always drives carelessly or recklessly
What are examples of routine practice of a business or organization?
1. Custom of inspecting trucks before released.
2. custom of sales clerk to give customers sales receipts
3. custom of employees at car rental to test brakes before cars are rented out
Does habit evidence apply to animals or machines?
No.
Does evidence of a person's habit have to be coaberated to be admissible?
No. A single witness can establish a person's habit - the wieght of the evidence is for the jury.
Can negative habit evidence be admitted?
Yes. Things like doesn't drink and doesn't smoke.
May a party to a lawsuit testify to his/her particular habits?
Yes - He can testify he always drives the speed limit or wears his seatbelt, etc.
Do the FRE permit the intro of habit evidence regardless of the presence of an eyewitness to the event?
Yes.
How can proof of habit or routine practice by shown?
1. specific acts of conduct and
2. opinion evidence, but not
3. reputation in the community.
How is character defined? (FRE 404, 405, 413-415)
1. What a person is, a person's nature, propensity or disposition
2. A personality trait for being
- honest or truthful or dishonest
- violent or peaceful
- careful or careless
- safe or reckless
- polite or rude
- law abiding
- temperenace or sobriety
Is character evidence admissible to prove conforming conduct?
No. It is too prejudicial.
When is character evidence admissible?
1. It depends on its purposes, and
2. to a large extent whether it is offerred in a civil or criminal case.
When is character evidence admissible in a civl case?
When a person's character is an essential element of the a charge, claim, or defense. When a person's character is directly in issue. (Defamation, negligent entrustment, negligent hiring, child custody, wrongful death actions, civil fraud.)
What is the Kansas rule on character evidence in a civil case?
Character evidence is admissible in civil cases to prove conduct except where the character trait is for skill or care in negligence cases.
What types of evidence are admissible where a person's character is directly in issue?
1. Reputation in the community
2. opinion testimony by character witness
3. specific acts relevant to the character trait. - may involve criminal or non-criminal acts, and no conviction, arrest, or charges are required.
When is character evidence admissible in criminal cases?
1. Chracter of accused "mercy rule"
2. Victim's Character
3. Sexual Assault/Child molestation
4. Impeachment or rehabilitation of witness's character for truth and veracty
5. character of victim of sexual assault cases.
What is the Mercy Rule?
An accused has a right to offer evidence of his/her good character to prove his/her innocence (conforming conduct)
- accused must initiate - not prosecution
- character evidence must be relevent to crime charged.
What are the ways an accused may open door to good character?
- Call character witness to testify
- Judges may not be character witness
- accused take teh stand and specifically testify to his character. (By testifying, the accused has not automatically open door to character if he only testifies to self-defense, alibile, general character, etc.
- Cross-exam by defense of prosection witness which suggests good character by accused
What are the types of admissible character evidence to prove good character of accused?
1. reputation in the community
2. opinion testimony.
KANSAS - prior convictions are also admissible to prove character
NOT specific good acts of accused
Does the prosecutor have a rebuttal to the Mercy Rule?
Yes - once accused has opened door, prosecution may call character witness to offer evidence of bad character - rebuttal only, relevant character trait, reputation and opinion testimony only, not specific acts
When can a victim's character be addressed?
1. In assault, battery, and homicide cases, the accused has right to offer evidence to V's character for violence on the issue of self-defense.
- only accused can open door to V's character - not prosecution
- Must be relevant to the crime charged
- Does not apply to sexual assault cases.
Does a prosecutor have a rebuttle to victim's character?
Yes, can call character witnesses to testfy to the victim's peaceful character. Rebuttal only, reputation and opinion testimony only - not specific acts
What are the 2 special rules regarding vicitm's character?
- By attacking the V's character for violence, the accused opens door to his/her character for the same trait. (Kansas contra.)
- In homicide cases only: If the accused offers any testimony that the V was the aggressor on the issue of self-defense, the prosecution may no offer evidence of the V's character for peacefullness or nonviolence.
When can character evidence be used in sexual assault/child molestation cases?
If D is charged with either, evidence of prior sexual acts by D is admissible for any relevant purpose, including D's propensity or disposition to commit sex offenses.
- Court can limit if too prejudicial
- Admissible in both civil and criminal cases
- not addmissible in most states to prove conforming conduct, but can prove motive, intent
- prior conviction or arrest not required
- No comparable kansas rule
What type of character evidence may be admisslble to impeach or rehability a witnesses' character for truth and veracity?
repution or opinion testimony only, no specific acts

- Evidence of prior false claims by the Victim are not barred
What is the rape shield rule?
Evidnece of past sexual misconduct by an alleged victim is usually excluded including evidence of other sexual history and the V's sexual predisposition.
What are the exceptions to the rape shield rule?
Specific acts only may be admissible to:
1. show that other person's caused V's injuries or was the source of semen,
2. show the issue of consent, prior sexual acts between the V and D,
3. constitutionally required.
What are the Kansas rules regarding the rape shield?
- Only applies to criminal cases.
- In civil cases, the sexual behavior of the V is only admissible if the probative value substantially outweighs its unfair prejudice.
Can evidence of other (WAC - wrongs, acts, crimes) by a D be used to show action in conformity with character?
No. Except where D is charged with sexual assault/child molestation. Applies in both criminal and civil cases, and does not require a conviction or even an arest.
Can the fact that D was engaged in prior bad acts be admissible to prove that he is a bad person or has a disposition or propensity to commit crimes?
No. too prejudicial.
Can evidence of other WAC be admissible to prove something relevant other than conforming with conduct?
Yes - to show things like motive, opportunity, intent, preparation, plan, knowledge, identiy, absence of mistake or conduct.
What does MIAMI COP K-9 Stand for?
Motive, intent, absence of mistake, identity, common scheme (not in KS statute), opportunity, preparation/plan, knowledge.

KS - evidence of prior incidients between the D and the V to prove a bad and continuing relationship is admissble.
What is the test for other acts admissiblity?
Prior acts evidence must be relevant to prove a material issue and the 403 balancing test applies. Probative value must be substantially outwieghed by unfair prejudice.
Does the entrapment defense work for other acts?
Yes, if the D claims entrapment under the prevailing predisposition test, evidence of other crimes by the D may be admissible to refute his claim that the intent to commit the crime originated with the government.
What is the notice requirements for other acts?
Prosecutor must give reasonable notice in advance of trial
What is the proof requirement for other acts?
Sufficient evidence to support a finding by the jury that th eD committed the act - low threshold
Is evidence of other crimes or bad acts admissible in a subsequent trial despite acquittal of the D?
Yes. Double jeopardy and collateral estoppel rules do Not apply
What are the 4 basic competency qualifications for every witness?
COMP - communicating, oath/affirmation, memory, personal knowledge of fact. - experts don't need personal knowledge of fact.
Are child witnesses competent?
Yes - no age requirement
Are insane witnesses competent?
Yes.
Are judges as witnesses competent?
No. No objection required to preserver error federally. Kansas requires an objection.
Are jurors as witnesses competent?
No.
Are attorneys witnesses competent?
Yes.
Are alcoholics/drug addicts as witnesses competent?
Yes.
What is the deadman statute?
No federal deadman's act except in diversity of citizenship cases in states that allow it.
Can juror's attack the validity of a verdict?
No. Jurors post-verdict may not testify as to events discussed during jury deliberations - affidavits by jurors are also inadmissible.

EXCEPTIONS: extraneous prejudicial information was improperty brought to jury's attention, and any outside influence was improperly brought on a juror.

KS rule: juror may testify to any extrinsic misconduct within or outside of the jury room.
What does "invoking the rule" mean?
Witnesses are excluded from the courtroom and admonished not to discuss their testimony with any person.
Who is excluded from the rule?
a party who is a plaintiff or defendant, an officer or employee representative which is not a natural party, expert witnesses, witnesses exempt by statute
what are the remedies avaiable to the court when a witness violates the rule?
1. refuse to allow the witness to testify
2. declare a mistrail
3. warn jury to consider credibility
4. declare witness in contempt
When are leading questions allowed on direct examination?
1. Preliminary matters (age, education ,etc)
2. witness has communication problems
3. to refress witness's memory
4. Where a party calls a hostile witness, adverse party, or witnessed identified with adverse party.
What types of questions are allowed on cross- exam?
1. leading questions
2. Exception: where witness and cross exam are on the same side of the case.
What is the scope of cross exam?
Federal rules (majority) - limited only to those topics on direct exam plus credibility of witnesses
Minority - all relevant topics
KS - sound discretion of the court.
What are the procedure for refreshing recollection?
1. Ask leading questions to job memory, then refresh with any object, thing or writing regardless of source)

1. Have writing marked as exhibit
2. ask court permission to approach
3. hand writing and ask to read silently
4. put aside writing, ask if refreshed
5. have testify
Is attorney/client and work-product privilege waived when using it to refresh at trial?
Yes.
What are the 6 preliminary rules of impeachment?
(1) Good faith basis - not required if neutral question
(2) no rehab evidence is admissible unless credibility has been attacked
(3) Extrinsic evidence is NOT admisslbe to prove collateral issue or fact
(4) when accused testifies on a preliminary matter, accused is not subject to cross on other issues
(5) you may impeach your own witness
(6) may not impeach or enhance on religious beliefs
Is extrensive evidence admissible for partiality (bias, prejudice, interest, coercion?)
Yes.
Is extrensive evidence admissible for contradiction by other evidence?
No if collateral issue
Is extrensive evidence admissible for perception, mental, sensory?
Yes
Is extrensive evidence admissible for prior inconsistent statements of witness?
Yes
Is extrensive evidence admissible for prior conviction of a crime?
Yes
Is extrensive evidence admissible for prior acts of dishonesty?
No.
Is extrensive evidence admissible for Character of Witness for truthfulness/untruthfulness?
Yes, character witness.
Is extrensive evidence admissible for cross exam of character witness?
No.
What are the modes for rehabilitation of a witness?
Have witness explain inconsistencies, call character wtiness to testify, prior consistent statemetns are not admisible except where to show a motive to lie existed.
What two conditions are there for opinions by lay witnesses?
Personal knowledge of facts with perception
opinion must help or assist the jury
What can experts testify to?
Subject must be appropriate scientic, technical, or specialiazed knowlege, the expert opinion will help or assist the jury and the opinion must be relevant and based on reliable methods.
What is the Daubert Factors?
PEAT - Has the scientific theory been subjected to Peer review or publication?
What is the error rate? General acceptance in the relevant scientific community? Has the scientific theory been tested?
Does KS follow the Frye doctrine?
Yes. Inadmissible unless scientific principle method had gained general acceptance in the relevant scientific community.
Who qualifies as an expert?
Witness may qualify on any of the factors: knowledge, skill, experience, training or education.
What kinds of facts/data may an expert base his/her opinion on?
Facts learned by expert before/during trial? Hypothetical questions based on facts relevant in evidence, facts other experts reasonably use in forming opinions. Need not be admissible in evidence as long as other experts use same type of evidence.
May an expert state an opinion that embraces an ultimate isseu at trial?
Common law - No, federal rule - yes. An opinion on an ultimate issue is admissible if the judge belives the opinion will help the jury decide the case. (no comparable rule in Kansas.)