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43 Cards in this Set

  • Front
  • Back
What are the threshold admissibility issues?
1. Materiality
2. Relevance
3. Competence
What is materiality?
Materiality exists when the prooffered evidence relates to one of the substantive legal issues in the case.
What are the key questions to ask regarding materiality?
1. What issue is the evidence offered to prove?
2. Is that legal issue material to the substantive cause of action or defense in the case?
Discuss probativeness
Probativeness embraces the test of materiality and something more. Probative evidence contributes to proving or disproving a material issue.
In the Federal rules, are materiality and Probativeness combined?
Yes, in the FRE, as in most modern codes, the requirements of materiality and probativeness are combined into a single definition of relevance. Thus, Federal Rule 401 provides that "Relevant Evidence" means evidence tending to prove (probativeness) any fact of consequence to the action (materiality).
Discuss competence
Material and relevant evidence is admissible if competent. Evicence is competent if it does not violate an exclusionary rule. Basically, then, if evidenc eis material and relevant, the onlly reason such evidence would not be admitted is if it is prohibited by a special exclusionary rule of evidence.
What is direct evidence?
It relies on actual knowledge. Direct evidence goes directly to a material issue without intervention of an inferential process. Evidence is direct when the very facts in dispute are communicated by those who have actual knowledge by means of their senses.
What is circumstantial evidence?
It relies on an inference. Circumstantial evidence is indirect and relies on inference. It is evidence of a subsidiary or collateral fact formwhich, alone or in conjunction with a cluster of other facts, the existence of the material issue can be inferred.
What is testimonial evidence?
It is oral evidence given under oath.
What is documntary evidence?
Evidence in the form of a writing
What is Real Evidence?
This is the term applied to evidence consisting of things as distinguished from assertions of witnesses about things. Real evidenceincluces anything conveying a firsthand sense impression to the trier of fact, such as knives, jewelry, maps, or tape recordings.
Discuss jury instructions
As a general rule, if evidence is admissible for one purpose, it is not excluded merely because of the danger that the jury may also consider it for another incompetent purpose. When evidence that is admissible as to one party or for one purpose but is not admissible as to another part or for another purpose is admitted, the court must, upon request restrict the evidence to its proper scope and instruct the jury accordingly (FRE 105)
What is relevance?
Relevance, in the sense of probativeness, has to do with the tendency of evidence to prove or disprove a material issue, to render it more probably true, or untrue, that it would have been without the particular evidence. It can be stated, as a general proposition, that all relevant evidence is admissible if it is offered in an unobjectionable form and manner.
How do you determine relevance?
The basic questions to ask are:
1. What proposition is the videncebeing used to prove?
2. Is this a material issue in the case?
3. Is the evidence probative of that proposition?
What is evidence?
Testimony, writings, material objects, or other things proesented to the senses that are offered to prove the existence or non-existence of a fact.
What is the barf for relevance?
Evidence having any tendency in reason to prove or disprove any fact that is of consequence to the determination of the action.
What is the difference between Ca and FederalDefinition of relevance?
In Ca, the fact has to be disputed. Federal rules merely require it to be a fact of consequence.
What are the six steps to determine whether or not something is relevant?
1. what is the evidence
2. What is it being offered to prove
3. What is the contested issue in the case?
4. What does the code provide?
5. Will it come in some other way?
6. Will it become more prejudicial than probative?
What does the relevance rule do?
It restricts the trier of fact to considering only material than relates closely to facts that matter in the case.
What are the three main federal relevance provisions?
402- Requires that evidence be relevant to be admitted and that irrelevant evvidence be excluded

401- provides the definition of relevant evidence

403- allows the trial judge to use discretion to avoid admitting evidence under certain circumstances even when its admission would be required under rules 401 and 402. This is the weighing of the probative value versus the prejudicial effect of the evidence.
Who decides the questions of admissibility under common law and under the federal rules?
The judge, pursuant to 104 (a) Preliminary questions cocnerningthe qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determine by the court
Relevant evidence maybe excluded if its probative value is substantially outweighed by the danger of what?
1. Unfair prejudice
2. Confusion of the issues
3. Misleading the jury
4. Waste of time
5. Needless presentation of cumulative evidence
What is probabilistic evidence?
We must have both an adequate foundation in evidence and in statistics. A statistical conclusion is only as valid as the underlying assumptions. If underlying assumptions are wrong, then all subsequent statistical inferences are wrong. Basically, use the 6 part relevance test then add whether the factors used were independent.
What happens in a situation where a signle item of evidence is relevant to one issue in a case and is a type of evidence forbidden to be considered with respect to another issue?
There are two possible resolutions of the circumstance where evidence has one permissible use and another impermissible use. we could keep out the evidence, the evidence can come in with a limiting instruction.
What is conditional relevance?
Sometimes an item of evidence by itself will have no relevance to any issue in a trial but would be relevant if the trier of fact also had some other information. Rule 104b governs this situation.
Discuss relevancy and similar happenings.
In determining the relevancy of similar occurrences evidence, a court will examine the surrounding circumstances of the previous incidents to compare them with the alleged facts of the incident that is the subject of the trial. If the earlier events took place under conditioons with characteristics that were similar to the conditions present at the time of the event that is the basis of the suit, information about them will be considered relevant.
What are the specific exclusions of relevant material?
1. Rule 411 Insurance coverage
2. Rule 407 Subsequent Remedial measures
3. Rule 408 Compromises and offers to compromise
4. Rule 409 Payments of medical expenses
5. Rule 410 Nolo Contendere and Withdrawn Guilty Pleas
What is the basic rule regarding admissibility of character evidence?
A basic rule (with some exceptions) is that evidence of a person's character may not be introduced to support an inference that the persona cted on a specific occasion in conformity with that character.
What is the distinction as to why character evidence to prove a person's action in conformity with that character is often prohibited?
The basic rule is that information about a person's character may not be introduced to suggest that the person did something because of a propensity to do such things. The "propensity inference" that a person did something because he or she is the type of person who would likely have done it, is often forbidden.
What is the distrinction as to why character evidence to prove a person's action in conformity with that character is often allowed?
In some situations, the propensity inference is explicitly allowed.
First- A criminal defendant is allowed to introduce evidence about his or her own good character to support an inference that he or she did not commit a charged crime.
Second- Also in criminal trials, the defendant mayh show that the victim was the agressor by introducing evidence ofthe victims character for violence.
Third- Provisions of the FRE allow oriif if a defendants sexual propensities in sex offense trials
Fourth- Impeachment
Will character evidence to prove a person's character allowed?
Yes, an element of a claim or defense can explicitly involve someone's character.
T/F Evidence that seems like character evidence is allowed if its relevance does not depend on an inference involving a conclusion about a person's character?
What is rule 404A?
Evidence of a person's character or trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion.
What is the difference between excluding propensity inferences in 404A, and for sexual offense cases under rules 413, 414, and 415?
For civil and criminal sexual offense casses, the traditional analysis under 404A is rejected. Rules 413, 414, 415 permit introduction of evidence of a defendants past sex offense to support an inference that the defendant committed another offense of that type.
What are the two main reasons for prohibition of propensity evidence in rule 404A?
First- the belief that the propensity inference may lead to wrong conclusions.
Second- A concern that the propensity inference would almost always be support by evidence that carries a significant risk of unfair prejudice.
For sexual offense casses, what are the three specific rules that take a position contrary to the general position of rule 404A?
These rules specifically provide for admission of character evidence showing a person's propensity to act in conformity with his or her character:
FRE 413
Fre 414
Fre 415
What is FRE 413A?
In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendants commission of another offense or offenses of sexual assault is admissible, and maybe considered for its bearing on any matter to which it is relevant.
What is FRE 414 (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 offense of child molestation is admissible, and maybe considered for its bearing on any matter to which it is relevant.
What is FRE 415 (A)
In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constitution an offense of sexual assault or child molesestation, evidence of that party's commision 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.
Do rules 413, 414, and 415 require the proponent of evidence admissible under these provisions to give notice to the party against whom it will be offered?
Can non propensity uses of character evidence be allowed to be admitted?
Although proof of someones character is kep out if offered to show action in conformity with that character on a specific occasion, (except in sexual offense cases and certain other limited circumstances) it can be admitted it if is introduced for other purposes. Rule 404 B
What is rule 404 B?
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as prove of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of anysuch evidence it intends to introduce at trial.
What is the burden of the proponent of past bad acts evidence when trying to bring it into court?
The proponent of past bad acts evidence has the burden of persuading the judg ethat the information has some relevance to the current trial other than to support a conclusion that the defendant is a bad person and therefore is more likely to have committed the charged offense. Additional, because past bad acts evidence is so likely to involve a risk of unfair prejudice, the trial judge will consider the relationship between its probative value and that risk of unfair prejudice under rule 403