Evidence 1

Front 1

Define "Substantive Use" and "Limited Use"

Back 1

Substantive Use is when evidence is offered for its truth

Limited Use is when evidence is offered for some reason other than its truth

Front 2

When do the Federal Rules of Evidence apply?

Back 2

In ALL civil and criminal trials and proceedings in federal court, including claims relating to bankruptcy, maritime, and admiralty. It is NOT applied in military courts.

Front 3

What proceedings are the Federal Rules of Evidence NOT applicable?

Back 3

1. Preliminary questions of fact regarding admissibility

2. Grand Jury proceedings

3. Preliminary Hearings

4. Sentencing and Probation hearings

5. Obtaining a warrant

6. Bail proceedings

7. Summary contempt

Front 4

What are Motions in Limine?

Back 4

Pretrial rulings on the admissibility of evidence

Front 5

What is the Harmless Error Rule and when it is applied?

Back 5

The Harmless Error Rule is a standard for determining whether an appellate court will reverse a trial court's decision. It is applied when there has been an error but the is not prejudicial to the outcome of the case.

Front 6

When is an error "harmless"?

Back 6

An error is harmless if the jury would have reached the same verdict, even if the error did not occur.

Buzz words: "No substantial rights are affected"

Front 7

What is the "Plain Error Rule" and when is it applied?

Back 7

The Plain Error Rule is a standard for determining whether an appellate court will reverse a trial court's decision. It is applied when an error affects a substantial right of a party.

The ONLY time a reversal will occur from the admission of evidence despite an objection not being raised, is under this standard.

Front 8

How is an issue preserved for appeal?

Back 8

Where a judge's ruling admits evidence, a TIMELY and SPECIFIC objection MUST be made to preserve the issue for appeal. A general objection will NOT preserve the issue.

Where a judge's ruling excludes evidence, an offer of proof is required UNLESS the substance is apparent from the context

Front 9

Preliminary questions of admissibility are determined by WHO and INCLUDE what?

Back 9

Preliminary questions of admissibility are determined by the JUDGE (outside the presence of the jury) and include questions concerning:

1. Competence

2. Admissibility of Evidence

3. Privilege

Mnemonic: CAP

Front 10

What standard does the Court use in determining preliminary questions of admissibility?

Back 10

Preponderance of the evidence AND a judge is NOT bound by the Federal Rules of Evidence (except when determining issues concerning privilege)

Front 11

What is Conditional Relevancy?

Back 11

Where the admissibility of one item of evidence is conditioned upon the relevancy of another item of evidence

Front 12

What is Limited Admissibility?

Back 12

If evidence is admitted as to one party or for one purpose but is inadmissible as to another party or for another purpose. The Court MUST give a "limited" instruction accordingly.

Front 13

What is the Rule of Completeness and what is its purpose?

Back 13

Where a party introduces a part of a WRITING or RECORDING, the rule permits the opponent to immediately introduce another part of the writing or recording, which in fairness ought to be considered in conjunction with the excerpt introduced by the proponent.

Purpose -To avoid misleading the jury and prevent statements from being taken out of context

Front 14

What does the Rule of Completeness applied to?

Back 14

Writings and Recordings BUT NOT conversations

Front 15

Can a Judge listen to hearsay evidence on a preliminary question of fact?

Back 15

YES! A judge is NOT bound by the Federal Rules of Evidence for preliminary questions of fact

Front 16

What is Judicial Notice and what is its purpose?

Back 16

Judicial notice is a substitute for proof where the court accepts certain adjudicative facts as true without requiring a formal presentation of evidence.

Purpose -judicial economy

Front 17

When MUST a fact be judicially noticed?

Back 17

When it is requested by a party AND the party supplies the Court with the necessary information from a credible, accurate source.

The party does NOT have to give notice to the opposing party

Front 18

What facts are capable of being judicially noticed?

Back 18

Facts that are NOT in dispute and in ANY area -Science, history, government and court records, geography, calendars

Front 19

What are the 2 types of judicial notice and when is the Court NOT allowed to take judicial notice.

Back 19

There are two kinds of judicial notice:

1. Where the fact is NOT subject to reasonable dispute and generally known within the jurisdiction of the Court; OR

2. Where the fact is capable of accurate and ready determination by resort to sources of UNQUESTIONABLE accuracy

A judge MAY NOT take judicial notice of a fact merely because it is within her personal knowledge

Front 20

When can issues of judicial notice be raised?

Back 20

Any time -Pretrial, during trial or on appeal

Front 21

What is the difference in jury instructions for a judicially noticed fact between civil and criminal proceedings?

Back 21

In a civil trial, the judge must instruct the jury that they MUST accept the fact as conclusive (true)

In a criminal trial, the judge must instruct the jury that they MAY accept the fact as conclusive

Front 22

Can a party oppose to the taking of judicial notice?

Back 22

YES! An opposing party CAN dispute the taking of judicial notice BUT the general rule is that once a fact has been judicially notice by the Court, no contrary evidence is permitted on that issue.

Front 23

What things will a Court automatically take judicial notice of without a request by either party?

Back 23

The law of the state in which it is sitting and federal law

Front 24

What is the Burden of Proof?

Back 24

The Burden of Proof includes two concepts: the burden of production and the burden of persuasion

Front 25

What is the Burden of Production?

Back 25

It is a question of "who" and it places the burden of going forward/producing evidence on the moving party

Front 26

What is the Burden of Persuasion?

Back 26

It is a question of "how much" and it is the degree to which the evidence must be proven

Front 27

What are the levels of the Burden of Persuasion and in what context are they used?

Back 27

1. Reasonable Probability -in determining whether a witness may assert their 5th Amendment right against self-incrimination

2. Preponderance of the Evidence -the traditional civil standard and used in criminal cases in motions to suppress to evidence & determining whether a confession has been lawfully obtained (voluntary)

3. Clear & Convincing -reserved for criminally related civil cases such as fraud and the defense of insanity (burden on the defendant)

4. Beyond a Reasonable Doubt -standard generally for criminal cases

Front 28

How is a burden shifted?

Back 28

Either by an affirmative defense OR presumptions

Front 29

What is a presumption?

Back 29

A conclusion made as to the existence or non-existence of a fact. The fact MUST be drawn from other evidence that is admitted and proven to be true.

MOST PRESUMPTIONS ARE REBUTTABLE

Front 30

What is the "Bursting Bubble" theory?

Back 30

Once the opponent presents sufficient evidence that the presumed fact is NOT true, the presumption disappears (the bubble bursts)

Front 31

Describe the use of Presumptions in criminal law

Back 31

In criminal law, presumptions are RARE and DISFAVORED, since if they are not rebutted the result would amount to a judgment as a matter of law

Front 32

When are Presumptions IRREBUTTABLE?

Back 32

When they are created by statute or common law (most expressly stated to be irrebuttable)

Front 33

When is evidence "relevant"?

Back 33

Evidence is relevant when it tends to make the existence of ANY FACT more or less PROBABLE than it would be without it

Front 34

When is relevant evidence admissible?

Back 34

ALL relevant evidence is admissible, UNLESS excluded by the Constitution, Act of Congress, the Supreme Court or by the Federal Rules of Evidence.

Front 35

When is irrelevant evidence admissible?

Back 35

NEVER. Evidence that is NOT relevant is NOT admissible

Front 36

When can relevant evidence be excluded?

Back 36

403 Balancing Test: If the probative value is SUBSTANTIALLY outweighed by:

1. danger of unfair prejudice (invites jury to make a decision on improper ground);

2. confusion of the issues;

3. misleading the jury;

4. considerations of undue delay;

5. waste of time; or

6. needless presentation of cumulative evidence

This test FAVORS admission

Front 37

Is Unfair Surprise a proper objection to relevant evidence?

Back 37

NO!

Front 38

What are the different types of evidence?

Back 38

1. Direct evidence -no inference required

2. Circumstantial evidence -an inference is required

3. Real evidence -physical, tangible evidence

4. Demonstrative evidence -visual aids prepared in anticipation of litigation

Front 39

What is Character Evidence?

Back 39

It refers to a person's general propensity or disposition for honesty, peacefulness, or violence

Front 40

What is Character Evidence used for?

Back 40

1. Used as an essential element in a case

2. Used as circumstantial evidence of a person's conduct on a particular occasion

3. Used to impeach witness credibility

Front 41

What is the general rule for Character Evidence in civil cases? And the exception?

Back 41

General Rule: Character evidence is INADMISSIBLE to prove conduct in conformity therewith

Exception: Where character is in issue: an essential element of a cause of action, claim or defense

Front 42

When is a witness qualified to testify as to one's reputation?

Back 42

The Witness MUST establish he is aware of the reputation of the party in the relevant community

Front 43

When is a witness qualified to testify as to their opinion of one's character?

Back 43

The Witness MUST establish that he has sufficient knowledge to form an opinion about the particular trait

Front 44

In what causes of action is character in issue and whose character is in issue?

Back 44

IN CIVIL CASES,

1. Defamation -character of the plaintiff

2. Slander -character of the plaintiff

3. Child Custody -character of both parents

4. Negligent Entrustment -character of the person entrusted

5. Negligent Hiring -character of the employee

6. Self defense in a Battery or Assault claim-victim's character

Front 45

What types of Character Evidence may be used in a civil case?

Back 45

Reputation, Opinion and Specific Acts

Mnemonic: ROSA

Front 46

In a criminal cases, when may the prosecution introduce evidence of the Defendant's character?

Back 46

The prosecution may NOT initially introduce evidence of the defendant's character UNTIL the defendant has OPENED THE DOOR, then the prosecution may so rebut

Front 47

Character evidence may only be introduced regarding a pertinent trait. What is the "pertinent" character trait?

Back 47

It is determined by what the defendant is on trial for. If it is a crime of violence, then peacefulness (or lack thereof) is the pertinent trait, if fraud then honesty is the pertinent trait.

Front 48

How may a criminal defendant open the door for character evidence?

Back 48

With reputation or opinion evidence

Front 49

Once a criminal defendant has opened the door to character evidence, how may the prosecutor rebut?

Back 49

With reputation or opinion evidence. The prosecution may call its own witnesses to rebut the defendant's character OR may impeach any character witness with specific acts of the Defendant.

Front 50

When the criminal defendant has opened the door to character evidence, whose character may the prosecution use to rebut?

Back 50

The prosecution may rebut with the good character of the victim AND/OR the bad character of the defendant.

Front 51

What is the Special Rule in Criminal Homicide Cases?

Back 51

In a homicide case where the defendant offers evidence of the VICTIM'S character for violence in asserting a claim of self-defense, the prosecution may rebut with evidence of the VICTIM'S good character for peacefulness ONLY.

Front 52

When may a criminal defendant introduce reputation or specific acts of the victim's character?

Back 52

ONLY for purposes of showing the Defendant's state of mind may the defendant offer evidence of his OWN awareness of the victim's bad character for violence. This establishes the defendant's fear of the victim.

Front 53

When is character evidence admissible?

Back 53

When offered for a purpose OTHER THAN to show conduct in conformity with one's character

Front 54

When are other crimes, wrongs or acts admissible?

Back 54

General Rule: Circumstantial evidence of other crimes, wrongs or acts is generally INADMISSIBLE

Exception: UNLESS offered to prove:

Motive, Intent, Absence of Mistake, Identity or Common plan or scheme

Also permissible to show: Knowledge, Opportunity, or Preparation

Mnemonic: MIMIC

Front 55

When may evidence of MIMIC be admissible?

Back 55

In a criminal case, by the prosecution, in REBUTTAL. And the MIMIC evidence may derive from acts BEFORE, DURING or AFTER the date of the crime.

Front 56

What is Habit evidence?

Back 56

Evidence of the habit of a person, or routine practice of an organization, regardless of corroboration and other eyewitnesses, is relevant to prove conduct in conformity with the habit

Front 57

What is "habit"?

Back 57

A repeated response to a particular situation

Buzz words: Always, automatically, regularly, without fail, invariably, habitually, instinctively

NOT: usually, often, or frequently

Front 58

What form of evidence may be offered as habit evidence?

Back 58

Opinion or Specific Acts

Front 59

May habit evidence prove a negative?

Back 59

YES. Habit evidence may be offered to prove that a person never does something

Front 60

May a party testify as to their habit?

Back 60

YES

Front 61

When is evidence of a Subsequent Remedial Measure admissible?

Back 61

To show evidence of ownership, control, feasibility of a precaution or to impeach

Front 62

When is evidence of a Subsequent Remedial Measure inadmissible? Any why?

Back 62

To show negligence or design defect.

Why? For public policy concerns, to encourage persons to fix dangerous conditions

Front 63

When is the Subsequent Remedial Measure rule applicable?

Back 63

ONLY to remedial measures taken AFTER the event in issue occurred

Front 64

What is the general rule regarding Compromises and Offers to Settle? Why was the rule created?

Back 64

General rule: Evidence of an offer to settle a claim, which is DISPUTED either to validity or amount, is INADMISSIBLE to prove liability

Why? To encourage out of court settlements in civil cases

Front 65

When is evidence of a Compromise or Offers to Settle admissible?

Back 65

Exception: To prove bias or prejudice or to negate a contention of undue delay

Front 66

What is the general rule regarding Payment of Medical Bills and Similar expenses?

Back 66

Evidence of offering to pay medical bills (hospital or similar) is INADMISSIBLE, regardless of whether there is a dispute or not, to prove liability for an injury. BUT admissions made are NOT inadmissible.

Front 67

What is the "Redaction Rule?"

Back 67

When an offer to pay medical bills is made in conjunction with admissions, the admissions may be severed from the offer and are admissible while the offer itself is inadmissible.

Front 68

What is the rule for Pleas, Plea Discussions and Related Statements?

Back 68

A plea and any statements made during plea negotiations by a defendant to a PROSECUTOR (not to the police) in a criminal trial are INADMISSIBLE against the same defendant in a later proceeding

Applies:

guilty pleas later withdrawn, nolo contendere pleas, and offers to plead guilty

Front 69

What is the rule for Liability Insurance?

Back 69

Evidence that a person was or was not insured is INADMISSIBLE to prove negligence

Exceptions: May be admissible to prove agency, ownership or control

The LIMITS of insurance coverage is NEVER admissible but pretrial discover of insurance coverage is usually allowed

Front 70

What are Rape Shield Laws?

Back 70

A broad rule of exclusion. They prohibit evidence offered to show the victim's sexual behavior and other sexual history in ANY civil or criminal proceeding in cases involving sexual misconduct

Front 71

What does "sexual behavior" within Rape Shield Laws include?

Back 71

Actual sexual physical conduct as well as the use of contraceptives, fantasies, and any activities that imply sexual activity.

Predisposition evidence is INADMISSIBLE.

Predisposition includes how a person dresses, lifestyle choices, and speech.

Front 72

Are there any exceptions to Rape Shield Law? If so, what are they?

Back 72

YES. In a criminal case, specific acts are admissible to show

1. Consent -past acts with THIS defendant

2. Source of semen, jury or physical evidence -Acts with other men to show the defendant was NOT the source

Front 73

Evidence admissible under Rape Shield Laws require what procedure to be submitted into evidence?

Back 73

1. Notice MUST be given to the opposing party;

2. The evidence is reviewed in camera by the judge; AND

3. The evidence alleges sexual misconduct

Front 74

Who do the Rape Shield Laws protect?

Back 74

The alleged victim AND ANY WITNESS who is an alleged victim of sexual misconduct

Front 75

What is the rule for evidence of Similar Crimes in Sexual Assault & Child Molestation Cases in criminal cases?

Back 75

In a criminal case, in which the Defendant is accused of child molestation OR sexual assault, SPECIFIC ACTS by the Defendant are ADMISSIBLE and may be considered as they bear on ANY relevant matter including propensity, likelihood or disposition of committing sexual offenses

Front 76

What is the rule for evidence of Similar Crimes in Sexual Assault & Child Molestation Cases in civil cases?

Back 76

In a civil case in which there is a claim for damages or other relief is predicated on a party's alleged commission of sexual assault for child molestation, Same rule as in criminal cases apply.

Front 77

What standard is applied to determine the admissibility of Similar Crimes in Sex Assault & Child Molestation cases?

Back 77

This evidence is determined by a Judge using the 403 balancing test and are usually more probative than not.

Front 78

Does evidence of Similar Crimes in Sex Assault & Child Molestation cases have to be prior convictions?

Back 78

NO. Evidence of these acts does NOT have to be prior convictions or arrests and does NOT have to have occurred before the particular event in which the Defendant is on trial for.

Front 79

What Privileges are recognized by Federal Courts? List them.

Back 79

ONLY PRIVILEGES AT COMMON LAW

1. Attorney-client

2. Psychotherapist-patient

3. Clergyman-penitent

4. Husband-wife

Front 80

When are common law privileges applied compared with state law privileges?

Back 80

Common law is subject to superseding state law. Thus in civil cases in federal court for diversity jurisdiction, the privilege of a witness is determined by state law.

In federal question and criminal cases, the privilege of a witness is determined by common law

Front 81

No person has a privilege to __?

Back 81

1. Refuse to be a witness

2. Refuse to disclose a matter

3. Refuse to produce a document, writing or other object

EXCEPT as provided by the Constitution (5th Amendment), Statute or the Federal Rules of Evidence

Front 82

Describe Attorney-Client Privilege

Back 82

The client is the holder of the privilege and may refuse to disclose. The attorney may also assert the privilege on the client's behalf.

Privilege protects confidential communications made for the purpose of seeking professional or legal advice or services.

Observations & Pre-existing documents are NOT protected

Front 83

Describe rule for Work Product

Back 83

Work product is protected under the Attorney-client privilege. It protects material prepared by the attorney or his agent in anticipation of litigation

Exception: If a party seeking evidence protected by work product, can show a substantial hardship AND no other way of obtaining the evidence

Front 84

When is the Attorney-client privilege waived? How?

Back 84

1. Failure to assert privilege in a timely manner

2. Waiver of privilege -amounts to a partial waiver and only to the extent permitted by party

3. Blanket waiver -results only if waiver was intentional and both disclosed & undisclosed information concerns the same subject matter

4. Inadvertent waiver -Court will find NO waiver if the client (1) did not intend to waive, (2) took reasonable steps to protect information, and (3) took timely steps to remedy disclosure

Front 85

What third parties do the Attorney-client privilege extends to?

Back 85

1. Essential third parties -those furthering some purpose of the relationship

2. Attorney representatives -persons hired by the attorney to assist in rendition of legal services

3. Eavesdroppers -ONLY unknown eaveasdroppers

Front 86

Who is a client? A lawyer?

Back 86

A client includes any person (public officer, corporation or association -public or private) who is seeking professional legal services or consulting with a possibility of obtaining such services

A lawyer is any person authorized or reasonably believed by the client to be authorized to practice law

Front 87

What is the duration of Attorney-client privilege?

Back 87

Confidential communications privilege survives the client's death and may be asserted by the executor or the attorney

Front 88

Exceptions to Attorney-client privilege?

Back 88

There is NO attorney-client privilege when:

1. Future crime or fraud

2. Suits between the attorney and client

3. "Joint Client" exception -when 2 or more clients hired the same attorney and are involved in litigation between each other

However, with joint client, a waiver by one joint holder does NOT affect the right of another joint holder to claim privilege

Front 89

Is client identity OR fee arrangements privileged?

Back 89

NO. UNLESS disclosure of client identity will disclose additional or other privileged matters

Front 90

Describe Doctor-patient privilege

Back 90

Doctor-patient privilege is a STATE statutory privilege. The Federal Rules of Evidence do NOT recognize a doctor-patient privilege.

Front 91

Describe Psychotherapist-patient privilege

Back 91

The privilege is very broad and extends to various mental health specialists

The privilege protects confidential communications between a LICENSED psychotherapist and a patient who is seeking diagnosis or treatment for a medical condition

Front 92

List exceptions to the protections provided by the Psychotherapist-patient privilege

Back 92

1. Statement made regarding commitment proceedings

2. Statements dealing with court-ordered examinations

3. When medical condition is part of the claim (medical malpractice or personal injury)

4. Future crime or fraud

Front 93

Describe Marital Communications privilege

Back 93

Holder: Either spouse (both are holder)

Type of Case: Civil OR Criminal

Protects: Confidential communications DURING the marriage, NOT before. Observations NOT protected!

Duration: Privilege can be asserted even after divorce

Marriage: Must be valid and permitted by state

Front 94

How can Marital Communications privilege be broken?

Back 94

1. Communications made in the presence of older children, friends, relatives or other third parties

2. Crimes or intentional torts committed by one spouse against the other OR against the child

3. Any suit between the spouses relating to divorce proceedings

4. Joint participation in the commission of a crime

Front 95

Describe Spousal Immunity (Testimonial) privilege

Back 95

Holder: The Witness Spouse

Type of Case: Criminal

Protects: ALL communications, observations and impressions, regardless of confidentiality, both DURING & BEFORE marriage

Duration: privilege is lost upon divorce

Marriage: must be valid

Front 96

How can Spousal Immunity be broken?

Back 96

1. Suits between the spouses

2. Suits involving a child of either spouse

3. Joint participation in a crime

Front 97

Describe Religious Privilege

Back 97

Holder: Either Penitent or Clergyman

Protects: Confidential communication made from penitent to clergyman in his professional capacity as spiritual advisor

Front 98

How is the Religious Privilege broken?

Back 98

There are no recognized exception so long as the communication was made under conditions of confidentiality

Front 99

Political Vote

Back 99

Every person has a privilege to refuse to discloses his vote, UNLESS compelled by state election laws

Front 100

Trade Secrets

Back 100

A person has a privilege to refuse to disclose any trade secret he owns or to prevent others from disclosing such information, UNLESS concealment will create fraud or injustice

Front 101

Secrets of State and Other Official Information

Back 101

A secret of state is a government secret relating to national security or international relations

Protects: intergovernmental opinions, policy decisions, investigatory files, & other government materials

Front 102

Identify of Informer

Back 102

Federal and State privilege to refuse to disclose the identity of a person funneling information vital and relevant to law enforcement

ONLY government can assert privilege NOT the informant

Newspersons: Have no First Amendment right to refuse to disclose the identity of his sources BUT states can provide shield laws to afford such privilege

Front 103

Executive Privilege

Back 103

A court-created privilege for the President

Courts decide whether the privilege applies, although the President has an absolute privilege to refuse to disclose matters of national security

Front 104

Describe the 5th Amendment Privilege Against Self Incrimination

Back 104

This is a constitutional privilege that applies to evidence that is TESTIMONIAL. The accused in a criminal trial has the right to refuse to take the stand and the prosecutor may NOT comment on the defendant's refusal to take the stand

Front 105

What does the Privilege Against Self-Incrimination NOT protect?

Back 105

The presentation of real and demonstrative evidence is ADMISSIBLE. Privilege does NOT apply to Blood, hair, handwriting samples, fingerprints, lineups, photo IDs, scars, tattoos, put on an item of clothing, "read this"

Front 106

Does testimony of the Defendant at a preliminary hearing waive his privilege against self-incrimination?

Back 106

NO. Testimony given at a preliminary hearing (like a motion to suppress) does NOT waive the privilege of the accused not to take the stand at trial

Front 107

How does a Witness assert their privilege against self-incrimination in civil cases?

Back 107

The Witness MUST assert the 5th Amendment privilege on the stand

Front 108

When does the 5th Amendment NOT apply?

Back 108

When it has been WAIVED.

Waiver permits cross-examination to the subject matter about which the privilege was waived (it is NOT a blanket waiver)

Front 109

Describe the 2 types of Informant Immunity

Back 109

Transactional Immunity - A witness cannot be prosecuted for the underlying offense

Use Immunity -Statements by the witness may NOT be used against them BUT the prosecution does NOT agree that it will never prosecute. The person MAY be prosecuted through untainted, independent evidence

Despite immunity, a witness may STILL be prosecuted for perjury

Front 110

Describe waiver of 5th Amendment privilege

Back 110

Occurs expressly whenever the holder of the privilege voluntarily discloses the privileged information.

Waiver can be implied by failure to timely object to testimony

Front 111

May the opposing party comment on a party taking the 5th Amendment?

Back 111

In a criminal case, the prosecutor may NOT comment on the Defendant assertion of his 5th Amendment right.

In a civil case, the opposing party CAN comment AND create a negative inference