Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
105 Cards in this Set
- Front
- Back
|
Judicial Notice
|
Facts that the court determines to exist without need of formal proof because they are so easily verifiable. Only adjudicative facts are codified in Rule 201.
|
|
|
Types of Judicial Notice
|
Adjudicative (facts specific to the case), evaluative (things that are common sense), legislative, and governing law.
|
|
|
Logical Relevance
|
Evidence is relevant if it has the tendency to make the existence of any consequential fact more or less probable. Codified in Rule 401.
|
|
|
Pragmatic Relevance
|
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. EVEN IF EVIDENCE WOULD BE ADMISSIBLE, ALWAYS CONSIDER RELEVANCE. Codified in Rule 403.
|
|
|
Conditional Relevance
|
When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later. Codified in Rule 104(b).
|
|
|
Rule of Completeness
|
If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part-or any other WRITING OR RECORDED STATEMENT-that in fairness ought to be considered at the same time. Codified in Rule 106.
|
|
|
Bursting Bubble Theory
|
When the opponent of a presumption introduces evidence that contradicts the existence of the presumed fact, the bubble of the presumption bursts and the presumption disappears. Codified in Rule 301.
|
|
|
Shortcuts to Proof
|
Presumptions, judicial notice, and stipulations.
|
|
|
Scope of Cross-Examination
|
Cross should not go beyond the subject matter of direct and matters affecting credibility. Codified in Rule 611(b).
|
|
|
Refreshing Recollection
|
Anything can be used to refresh a witness's recollection. Provisions regarding writings specifically are codified in Rule 612.
|
|
|
Authentication
|
The proponent must introduce evidence adequate to support a finding that the matter is what its proponent claims it is.
|
|
|
Authenticating Evidence
|
Testimony of a witness with knowledge, non expert opinion about handwriting, comparison by an expert witness or the trier of fact, distinctive characteristics, opinion about a voice, evidence about a telephone conversation, evidence about public records, evidence about ancient documents or data compilations, evidence about a process or system, methods provided by a statute or rule, etc. Codified in Rule 901.
|
|
|
Self-Authenticating Evidence
|
Domestic public documents that are at least signed and certified, foreign public documents, certified copies of public records, official publications, newspapers/periodicals, trade inscriptions, acknowledged documents, commercial paper, presumptions under a federal statute, certified domestic or foreign records of a regularly conducted activity, etc. Codified in Rule 902.
|
|
|
Chain of Custody
|
A mode of authentication not mentioned in Rule 901 that focuses on the handling of the evidence.
|
|
|
Best Evidence Rule
|
Rule 1002 requires that an original writing, recording, or photograph be used to prove its content. (Also called the original document rule.) Rule 1003 permits admission of a duplicate unless a genuine question is raised about the original's authenticity or it is unfair to admit it.
|
|
|
Best Evidence Test
|
(1) Centrality (Is the content of the document central to the issue in dispute?) (2) Complexity (Is the content of the writing complex?) (3) Genuine Dispute (Is there a genuine dispute as to the content of the writing?)
|
|
|
Admissibility of Character Evidence
|
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. Codified in Rule 404(a).
|
|
|
Exceptions to Admissibility of Character Evidence
|
A defendant may offer evidence of the defendant's pertinent trait or evidence of an alleged victim's trait (and the prosecutor can rebut) in criminal cases. In homicide cases, the prosecutor may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor. Codified in Rule 404(a).
|
|
|
Proving Character
|
Character may be proved by testimony about the person's reputation or by testimony in the form of an opinion (and the court may allow inquiry into specific instances of conduct on cross). Codified in Rule 405(a). When a person's character or trait is an essential element of the charge or defense, the character or trait may be proved by specific instances of conduct. Codified in Rule 405(b).
|
|
|
Admissibility of Crimes, Wrongs, or Other Acts
|
Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character. Codified in Rule 404(b).
|
|
|
Exceptions to Admissibility of Crimes, Wrongs, or Other Acts
|
In criminal cases, evidence of crimes, wrongs, or other acts may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, lack of accident, modus operandi (MO), etc. The defendant may request that the prosecutor provide reasonable notice of the general nature of the evidence before trial. Codified in Rule 404(b).
|
|
|
Habit/Routine Practice
|
Evidence of a person's habit (something done semi-automatically) or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. Codified in Rule 406.
|
|
|
Subsequent Remedial Measures
|
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, defects in product/design, or a need for warning/instruction. Such evidence can be admitted for another purpose (ex. impeachment). Codified in Rule 407.
|
|
|
Applicability of Subsequent Remedial Measures
|
Rule 407 does not apply to third parties and to remedial measures taken before an accident.
|
|
|
Compromise Offers and Negotiations
|
Compromises or statements made during negotiations are inadmissible to prove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or contradiction. Such evidence can be admitted for another purpose (ex. proving a witness's bias/prejudice). Codified in Rule 408.
|
|
|
Offers to Pay for Medical and Similar Expenses
|
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.
|
|
|
Pleas, Plea Discussions, and Related Statements
|
In general, plea discussions are inadmissible. Codified in Rule 410.
|
|
|
Liability Insurance
|
Evidence that a person was or was not insured against liability is inadmissible to prove whether the person acted negligently. Such evidence may be admitted for another purpose (ex. proving a witness's bias/prejudice). Codified in Rule 411.
|
|
|
Methods of Impeachment
|
Bias, sensory incapacity, veracity (non-conviction misconduct, prior convictions, or character), prior inconsistent statements, and contradiction.
|
|
|
Bias
|
Bias is any kind of animus, corruption, motivation, etc. that will lead a person to shade his or her testimony one way or the other. No need to lay a foundation and extrinsic evidence on non-collateral matters is admissible. Non-specific at common law.
|
|
|
Sensory Incapacity
|
Occurs when the witness either could not perceive something or cannot remember something. Extrinsic evidence is admissible. Non-specific at common law.
|
|
|
Non-Conviction Misconduct
|
Except for criminal convictions under Rule 609, extrinsic evidence is inadmissible to prove specific instances of a witness's conduct to attack or support the witness's character for truthfulness. The court may allow such inquiry on cross if probative of the character for truthfulness of the witness or another witness. Codified in Rule 608(b).
|
|
|
Prior Convictions
|
Evidence regarding crimes punishable by death or imprisonment of more than one year must be admitted in civil cases or criminal cases in which the witness is not a defendant and criminal cases in which the witness is a defendant IF THE PROBATIVE VALUE OUTWEIGHS PREJUDICIAL EFFECT. Evidence of any crime dealing with dishonest acts or false statements must be admitted. Codified in Rule 609(a).
|
|
|
Limit on Evidence of Prior Convictions
|
In general, if more than 10 years have passed since the conviction or release, evidence of it is inadmissible. Codified in Rule 609(b).
|
|
|
Character
|
A witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness or by testimony in the form of an opinion. Evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked. Codified in Rule 608(a).
|
|
|
Prior Inconsistent Statements
|
A party need not show the witness the prior inconsistent statement but must, on request, show it to the adverse party. Extrinsic evidence is only admissible if the witness is given a chance to explain or deny the statement and an adverse party can examine the witness about it. Specific and codified in Rule 613.
|
|
|
Contradiction
|
A witness can contradict another witness but only on non-collateral matters. In general, non-collateral extrinsic evidence is admissible but a witness can open the door to collateral extrinsic evidence. Specific at common law.
|
|
|
Methods to Contradict
|
(1) Counterproof on substantive (non-collateral) issues (court will admit and extrinsic evidence is permitted), (2) counter proof as to a credibility issue (court will admit and extrinsic evidence is permitted), and (3) counterproof just to contradict (court is not likely to admit and extrinsic evidence is not permitted).
|
|
|
Rehabilitation
|
Prior consistent statements, explanations about convictions, and evidence about truthfulness (after the door has been opened under Rule 608(a)) can be used to rehabilitate an impeached witness. Once the door has been opened for an attack on veracity, character evidence can be used to rehabilitate.
|
|
|
Religious Beliefs or Opinions
|
Evidence of a witness's religious beliefs or opinions is not admissible to attack or support the witness's credibility. Codified in Rule 610.
|
|
|
Witness Competency
|
Rule 601 provides that every person is competent to be a witness unless otherwise provided in the Rules. 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. Codified in Rule 602. IF YOU UNDERSTAND TRUTHS/LIES AND HAVE PERSONAL KNOWLEDGE, YOU CAN TESTIFY.
|
|
|
Oath or Affirmation to Testify Truthfully
|
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. Codified in Rule 603.
|
|
|
Lawyers as Witnesses
|
In general, a lawyer cannot be a witness in a case in which he or she is acting as counsel.
|
|
|
Judge's Competency as a Witness
|
The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue. Codified in Rule 605.
|
|
|
Juror's Competency as a Witness
|
A juror may not testify as a witness before the other jurors at trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury's presence. Codified in Rule 606(a).
|
|
|
Validity of a Verdict or Indictment
|
During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during deliberations, the effect of anything on the jurors' votes, or the jurors' mental processes. Codified in Rule 606(b).
|
|
|
Exceptions to Inquiries into the Validity of a Verdict or Indictment
|
A juror may testify about whether (1) extraneous prejudicial information was improperly brought to the jury's attention, (2) an outside influence was improperly brought to bear on any juror, and (3) a mistake was made in entering the verdict on the verdict form. Codified in Rule 606(b).
|
|
|
100 Rules
|
General provisions including scope, definitions, purpose, rulings on evidence, preliminary questions, completeness, etc.
|
|
|
200 Rules
|
Judicial notice of adjudicative facts.
|
|
|
300 Rules
|
Presumptions.
|
|
|
400 Rules
|
Relevancy and character evidence.
|
|
|
600 Rules
|
Witness competency and impeachment.
|
|
|
900 Rules
|
Authentication and identification.
|
|
|
1000 Rules
|
Best evidence doctrine and contents of writings, recordings, and photographs.
|
|
|
700 Rules
|
Expert witnesses.
|
|
|
800 Rules
|
Hearsay, hearsay exclusions, and hearsay exceptions.
|
|
|
Hearsay
|
An out-of-court statement offered into evidence for the truth of the matter asserted.
|
|
|
Nonhearsay Uses
|
Impeachment, Verbal Acts or Parts of Acts, Effect on the Listener, Verbal Objects/Markers/Legends, and Circumstantial Evidence of State of Mind and/or Memory or Belief
|
|
|
Hearsay Exclusions
|
Declarant-Witness's Prior Statement: prior inconsistent statements, prior consistent statements, prior statements of identification.
Opposing Party's Statement: party's own statement, adoptive admissions, authorizing statements, agency, and coconspirator. |
|
|
Prior Inconsistent Statement Hearsay Exclusion
|
The witness must be cross-examinable, the statement must be inconsistent with prior testimony, and the statement must have been made under oath in a trial, deposition, or other proceeding for the statement to be admissible.
|
|
|
Prior Consistent Statement Hearsay Exclusion
|
The witness must be cross-examinable, the statement must be consistent with the testimony, and the statement must be offered to rebut a charge of recent fabrication or improper influence/motive.
|
|
|
Party's Own Statement Hearsay Exclusion
|
Formerly called an "admission," a statement made by the opposing party. Personal knowledge is not needed.
|
|
|
Adoptive Admissions Hearsay Exclusion
|
A statement made by another party that the opposing party adopts or believes to be true.
|
|
|
Authorizing Statements Hearsay Exclusion
|
A statement made by someone authorized to speak for the opposing party, such as a lawyer.
|
|
|
Agency Hearsay Exclusion
|
A statement made by the opposing party's employee or agent within the scope of that relationship and while it existed.
|
|
|
Coconspirator Hearsay Exclusion
|
A statement made by the opposing party's coconspirator during and in furtherance of the conspiracy. Need the "coventurer," "pendency," and "furtherance" requirements.
|
|
|
Then-Existing Mental, Emotional, or Physical Condition
|
Can be used to prove (1) the declarant's then-existing physical condition, (2) the declarant's then-existing mental or emotional condition, (3) the declarant's later future conduct (Hillmon Doctrine), and (4) facts about the declarant's will.
|
|
|
Hillmon Doctrine
|
A statement by the declarant as to his or her then-existing intent as a basis from which the declarant's subsequent conduct can be inferred.
|
|
|
Statement Made for Medical Diagnosis or Treatment
|
The statement must (1) be reasonably pertinent to the diagnosis or treatment, (2) describe medical history or symptoms, and (3) be made to any medical personnel capable of providing diagnosis or treatment.
|
|
|
Past Recollection Recorded
|
A statement that (1) is on a matter the witness once knew but no longer remembers, (2) made when the matter was fresh in the witness's memory, and (3) accurately reflect the witness's knowledge.
|
|
|
Records of a Regularly Conducted Activity (Business Records)
|
A record that was made at/near the time by someone with knowledge and kept it in the course of a regularly conducted activity if making the record was a regular practice of that activity, all these conditions are shown by the custodian's testimony, and there is no indication of lack of trustworthiness.
|
|
|
Absence of a Record of a Regularly Conducted Activity
|
Evidence that a matter is not included in a record if (1) the evidence is offered to prove the matter did not occur/exist, (2) a record was regularly kept for those matters, and (3) there is no indication of lack of trustworthiness.
|
|
|
Public Records
|
A record of a public office that (1) sets out the office's activities, (2) a matter observed while under a legal duty to report (excluding law enforcement in a criminal case) or factual findings from a legally authorized investigation in a civil case or criminal case against the government, and (3) does not indicate a lack of trustworthiness.
|
|
|
Hearsay Exceptions When Declarant Is Unavailable
|
Former Testimony, Statement Under the Belief of Imminent Death (Dying Declaration), Statement Against Interest, Statement of Personal or Family History, and Statement Offered Against a Party That Wrongfully Caused the Declarant's Unavailability
|
|
|
Former Testimony Hearsay Exception
|
A statement given at a legal proceeding and is now offered against a party who had an opportunity to cross-examine.
|
|
|
Statement Under the Belief of Imminent Death (Dying Declaration) Hearsay Exception
|
A statement made while the declarant believed death to be imminent about the cause or circumstances of the death.
|
|
|
Statement Against Interest Hearsay Exception
|
A statement a reasonable person in the declarant's position would have made only if the person believed it to be true because if was so contrary to the declarant's interest when made and, in a criminal case, is supported by corroborating circumstances that prove the statement's trustworthiness.
|
|
|
Statement of Personal or Family History Hearsay Exception
|
A statement about (1) the declarant's own facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about the fact or (2) another person concerning a fact of personal or family history, including death, if the declarant was related to the person by blood, adopting, marriage, or intimate association.
|
|
|
Statement Offered Against a Party That Wrongfully Caused the Declarant's Unavailability Hearsay Exception
|
A statement offered against a party that wrongfully caused--or acquiesced in causing--the declarant's unavailability as a witness, and did so intending that result.
|
|
|
Residual Exception
|
The statement must (1) have equivalent circumstantial guarantees of trustworthiness, (2) be offered as evidence of a material fact, (3) be more probative on the point for which it is offered than any other evidence that could be obtained, and (4) best serve the interests of justice. Reasonable notice to the opposing party must be given.
|
|
|
Crawford v. Washington
|
The Sixth Amendment requires unavailability of the declarant and a prior opportunity for cross-examination for a testimonial statement to be admitted against a criminal defendant.
|
|
|
Davis v. Washington
|
Statements are testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. Here, the victim's statements were not testimonial because the 911 call was cut off, she was "frantic," and she was in the middle of a domestic disturbance at the time of the call.
|
|
|
Hammon v. Indiana
|
Statements are testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. Here, the wife's statements were testimonial because both partners said that “everything was fine now,” though several household items were broken and the wife had injuries.
|
|
|
Michigan v. Bryant
|
The primary purpose of the interrogation is determined by objectively evaluating the statements and actions of the parties to the encounter, in light of the circumstances in which the interrogation occurs.
|
|
|
Giles v. California
|
The Court held that the defendant did not intend for the victim to be unavailable to testify, despite the fact that he killed her. (In other words, there was no evidence that the defendant was thinking about preventing the victim from testifying when he shot her.)
|
|
|
Forfeiture by Wrongdoing
|
A defendant cannot make the witness unavailable and subsequently claim his or her right to confrontation has been violated.
|
|
|
Testimonial
|
A statement that was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against the accused at a later trial.
|
|
|
Non-Testimonial
|
A statement that was made under circumstances objectively indicating that the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency.
|
|
|
Primary Purpose
|
Consider the purpose of the interrogation and the statements and actions of both parties. Think about objectivity, both parties, the formality/informality of the encounter, the zone of danger/possible victims, and the presence/absence of weapons.
|
|
|
Expert Witnesses
|
A witness is qualified as an expert by knowledge, skill, or experience, training, or education if (1) the expert's scientific, technical, or other specialized knowledge will help the trier of fact understand the evidence or determine a disputed fact, (2) the testimony is based on sufficient facts or data, (3) the testimony is the product of reliable principles and methods, and (4) the expert has reliably applied the principles and methods to the facts of the case.
|
|
|
Frye v. United States
|
Judges must defer to the scientific community to determine whether a specific fact is valid. Still the standard in New York.
|
|
|
Daubert v. Merrell Dow Pharmaceuticals
|
There no longer needs to be general acceptance of a certain fact or principle as long as the expert can demonstrate that it is reliable scientific knowledge. Overruled Frye on the federal level.
|
|
|
Kumho Tire Co. v. Carmichael
|
Witnesses may be experts in subjects other than hard sciences.
|
|
|
United States v. Gonzalez-Benitez
|
Content of the conversations mattered; not the conversation of the tapes. The Best Evidence Rule could not get the tapes in.
|
|
|
United States v. Duffy
|
The Best Evidence Rule did not apply to a t-shirt marked "DUF" because it is not a complex writing, the t-shirt is a chattel, and it was collateral evidence.
|
|
|
Tuer v. McDonald
|
Wife brought in new protocol with respect to Heparin/surgical procedures to attempt to impeach the defendant after defending the old protocol. Both protocols were sound medical procedures; impeachment was not viable.
|
|
|
United States v. Abel
|
A witness's and a party's common membership in an organization, even without proof that the witness or the party has adopted its tenets, is probative of bias. Here, the prosecutor was ordered not to use the term "Aryan Brotherhood."
|
|
|
United States v. Manske
|
Testimony about threats to government witnesses should have been admitted because they speak to veracity. See Rule 608(b).
|
|
|
Tome v. United States
|
The defense is attempting to show the child is lying about the alleged abuse and just wants to go live with her mom. In response, the prosecution brings in several witnesses to testify to consistent statements made by the child about abuse from her father.
|
|
|
State v. Motta
|
The sketch artist was merely a conduit through which the cashier was able to make an identification of the defendant.
|
|
|
Bruton v. United States
|
When a co-defendant’s confession implicates a criminal defendant, and the co-defendant does not testify at trial, the admission of the confession violates the criminal defendant’s rights under the 6th amendment Confrontation Clause, even when jury instructions are given that instruct the jury to disregard the co-defendant’s confession in deciding the criminal defendant’s guilt.
|
|
|
United States v. Hoosier
|
When a party acquiesces by saying nothing to a statement made in his presence, that statement may be admissible as an admission by a party opponent under Rule 801a(d)(2)(B).
|
|
|
Melendez-Diaz v. Massachusetts
|
Prosecutor is trying to admit to an analysis from a crime lab to show substance at issue was cocaine and does not want to call the analyst who tested the substance and found that it was cocaine. The analyst must come in and testify. Notarized copies of the analysis are insufficient.
|
|
|
Johnson v. Lutz
|
The court held that a police report of an accident was not within the business records exception to the extent it rested on statements obtained by the officer from onlookers. The officer had a duty to report but did not see the accident; the onlookers had no duty to report but did see the accident. Catch-22!
|
|
|
Tanner v. United States
|
Despite the fact that several jurors consumed alcohol and drugs and even slept through parts of the trial, the court held that drugs and alcohol are not an "outside influence," unlike reading a newspaper article about the trial.
|
