Evidence 1

Front 1

SSR 102 says that the Purpose of the FRE is...

Back 1

To administer a fair proceeding

Front 2

Pursuant to 28 USC 2072 and 2073, Who has the power to prescribe rules?

Back 2

SCOTUS, Judicial Conference (who appoints Advisory Committee)

EXCEPT Congress has power over privilege rules

Front 3

Pursuant to 28 USC 2074, rules must be prescribed to Congress by...

Back 3

May 1 of the year of prescription

Front 4

Rule ___ states the general rule of admissibility.

Back 4

402

Front 5

Rule 402 contains an absolute rule and a rebuttable presumption. What are they?

Back 5

Absolute: Irrelevant evidence is NOT admissible

Rebuttable Presumption: Relevant evidence is admissible unless otherwise stated by U.S. Const., a fed statute, FRE, or SCOTUS rules

Front 6

What is the test for relevance? Name and explain the rule.

Back 6

401

Evidence is relevant if it (1) is material and (2) has probative worth

Materiality - must be material to the elements of the claim or defense

Probative Worth - "ANY" tendency to make a fact more or less probable

Front 7

What rule and provision governs when a JUDGE makes a determination?

Back 7

104(a)

Front 8

Under 104(a) what determinations must a JUDGE make?

Back 8

whether a witness is qualified,

a privilege exists, or

evidence is admissible

Front 9

What is the 104(b) standard AND when does it apply?

Back 9

Standard: Based on whether a reasonable jury could find the evidence relevant

It applies when the relevance of evidence depends on whether a fact exists AND proof of existence is shown UNLESS the court allows it to be shown later.

Front 10

True or False: "Surprise" is a ground for excluding relevant evidence under FRE.

Back 10

FALSE. Some states allow this to be a ground for exclusion, though. Rule 403 does not.

Front 11

Under Rule 403, when can relevant evidence be excluded? (Name standard and 6 grounds)

Back 11

When the probative value of the evidence is substantially outweighed by a danger of one or more of the following:

(1) Unfair Prejudice

(2) Confusing the Issues

(3) Misleading the Jury

(4) Undue Delay

(5) Wasting Time, or

(6) Needlessly Presenting Cumulative Evidence

Front 12

Old Chief says that _______ needs to be considered when evaluating whether unfair prejudice substantially outweighs probative value?

Back 12

Evidentiary alternatives (e.g. if ∆ is willing to testify to an element of the crime)

Front 13

What is "unfair prejudice?"

Back 13

An undue tendency to suggest [to the jury] a decision on an improper basis

(commonly an emotional basis)

Front 14

Caldwell varies from Old Chief in that it weighs _____ and ______ greater.

Back 14

The influence the evidence has on the (1) "narrative" and the (2) juror's expectations

Front 15

How can the court admit evidence that they find is substantially, unfairly prejudicial?

Back 15

Via Rule 105, the court can admit the evidence for a limited purpose and not allow it for others. They must provide limiting instruction to the jury to do so.

Front 16

What rule provides an alternative to exclusion under Rule 403?

Back 16

Rule 105 must always be considered an alternative to outright exclusion under rule 403.

Front 17

What rule governs the rule of completeness?

Back 17

106

Front 18

What type of evidence does rule 106 (Rule of Completeness) apply to?

Back 18

(RULE) Writings and recorded statements

(Lopez-Medina) also applies to oral testimony

Front 19

Rule 106 says that when party A introduces evidence, party B can require other parts of that evidence to be introduced b/c "in fairness ought to be considered at the same time" - what is the 4 part test?

Back 19

NEED ALL 4:

(1) Explains the admitted evidence

(2) Places the admitted evidence in context

(3) It avoids misleading the jury, AND

(4) Ensures fair and impartial understanding of the evidence

Front 20

TRUE OR FALSE: Rule 106 (Completeness) applies to conversations

Back 20

False.

Front 21

How can authentication be satisfied? (Rule and definition)

Back 21

Rule 901(a): the proponent must produce evidence sufficient to support a finding that the evidence is what the proponent says it is.

Front 22

True or False: Authentication is governed by the 104(b) standard

Back 22

TRUE

Front 23

Pursuant to Rule 404, evidence of a person's character is NOT admissible ___________.

Back 23

to prove that on a particular occasion the person acted in accordance with the character or trait.

Front 24

True or False: Character evidence is allowed where the substantive law for which ∆ is being prosecuted requires character trait as an element of the offense

Back 24

True. Rule 404 doesn't apply where character trait is an element of the crime

Front 25

What are the 3 ways to show character evidence? (Rule 405)

Back 25

(1) Opinion

(2) Reputation

(3) Specific Instance

Front 26

What are the 10 nonexclusive examples that satisfy the authentication requirement in rule 901(b)

Back 26

(1) Testimony of a witness w/ knowledge

(2) Nonexpert opinion about handwriting (must have familiarity)

(3) Comparison by an expert witness or trier of fact (judge or jury)

(4) Distinctive characteristics

(5) Opinion about a voice

(6) Evidence about telephone convo

(7) Evidence about public records

(8) Ancient documents or data compilation

(9) Process or system

(10) Provided by statute or rule

Front 27

What are there 2 (non-exclusive) ways to authenticate physical objects?

Back 27

(1) If it is unique - testimony that the evidence is what it claims to be

(2) If it is not unique - A sufficiently complete chain of custody

Front 28

What are the 4 (non-exclusive) ways of authenticating handwriting or written documents?

Back 28

(1) A lay witness with familiarity IF the familiarity is not acquired for the purpose of litigation

(2) An expert witness via comparison

(3) The trier of fact (judge or jury) via comparison

(4) Based on the the document disclosing knowledge of facts that the writer would only know

Front 29

What is the letter by mail presumption?

Back 29

When someone writes a letter and it is (1) an acknowledged response, (2) addressed to the first sender and (3) is timely, there is a presumption that it is genuine

Front 30

There is a presumption that an ancient document is authentic when... (3 factors)

Back 30

(1) it is in a condition that creates no suspicion about its authenticity, (2) is found in a place where you'd presume it to be, (3) it's at least 20 years old when offered

Front 31

What are the 3 (nonexclusive) ways to authenticate a photograph?

Back 31

(1) Testimony of witness w/ personal knowledge of the scene

(2) The reliability of the process by which photo was created

(3) Circumstantial evidence - 901(a)

Front 32

What is an example of sufficient circumstantial evidence to authenticate a photograph?

Back 32

2 pictures, same scene, different angles

Front 33

Is authentication a 104(a) or 104(b) issue?

Back 33

104(b)

Front 34

What are the 2 (nonexclusive) ways to authenticate an audio recording?

Back 34

(1) First hand knowledge of the conversations & identification of voice

(2) Chain of custody

Front 35

What are the 2 ways to authenticate a telephone conversation?

Back 35

(1) Making the call: Self-Identification when calling at a place where the person could reasonably be expected to be (e.g. House, cell-phone). There is a presumption that phone records are accurate

(2) Receiving the call: Self-identification is NOT sufficient but will look to circumstances (i.e. returning a call in specific response to another call)

Front 36

What are the 2 LEVELS of the main way to authenticate electronic (online) evidence?

Back 36

First Level: Authenticate that the printout or electronic log is an accurate reflection of the contents of the electronic communication

Second Level: Identify the author of the electronic communication

Front 37

Outside of the 2-level analysis, what are the other 2 methods to authenticate online evidence?

Back 37

(1) Contents that are confirmed by offline activity (follow-up verbal communication; follow-up conduct)

(2) Modern forensic techniques (IP address, password use, etc.)

Front 38

What rule is 106?

Back 38

The rule of completeness

Front 39

How do you authenticate a telephone call when the witness made the call?

Back 39

Making the call: Self-Identification when calling at a place where the person could reasonably be expected to be (e.g. House, cell-phone). There is a presumption that phone records are accurate

Front 40

How do you authenticate a telephone call when the witness received the call?

Back 40

Receiving the call: Self-identification is NOT sufficient but will look to circumstances (i.e. returning a call in specific response to another call)

Front 41

What rule is 901(b)?

Back 41

10 nonexclusive examples that satisfy the authentication requirement

Front 42

What is rule 901(a)?

Back 42

The general rule of authentication: the proponent must produce evidence sufficient to support a finding that the evidence is what the proponent says it is.

Front 43

What rule says this?

Evidence of a crime, wrong, or other act (specific instance) is not admissible to prove a person's character in order to show that on a particular occassion the person acted in accordance with the character

Back 43

Rule 404(b)(1)

Front 44

True or False: when character is an element of the offense, it can be substantially outweighed by undue prejudice.

Back 44

False. For the most part, it cannot be substantially outweighed by undue prejudice

Front 45

The exceptions that allow admittance of character evidence under rule 404 apply to civil cases, criminal cases, or

both?

Back 45

Criminal

Front 46

What are the exceptions for admitting ∆'s or victim's character evidence (NOT specific instance) under rule 404(a)?

Back 46

(1) ∆'s character trait: ∆ must first offer evidence of ∆'s pertinent trait and if admitted, π can rebut
(2) Victim's character trait: ∆ can offer evidence of victim's character trait, and if admitted, π can rebut, AND bring evidence of ∆'s same trait

(3) Homicide Case: if ∆ bring evidence that victim was first aggressor, π can bring evidence of victim's peacefulness

Front 47

Does 404 apply to evidence of a witness' character?

Back 47

No. Rule 404(a) says that evidence of a witness' character can be admitted via Rule 607, 608, and 609

Front 48

Rule 404(a) says that IF ____ first offers evidence of ∆'s pertinent trait (NOT specific instance) and it is admitted, _____ can rebut with other character evidence

Back 48

∆

π

Front 49

Rule 404(a) says that IF ____ first offers evidence of victim's character trait (NOT specific instance), and it is admitted, ___ can (1) _________, and (2) _______________.

Back 49

∆,

π,

(1) rebut with other character evidence,

(2) bring evidence that ∆ has same trait

Front 50

Rule 404(a) says that if _____ brings evidence that the victim was the first aggressor in a Homicide Case, ____ bring evidence of __________.

Back 50

∆

π

Peacefulness

Front 51

True or False: Rule 404(a) allows evidence of witness' character to be brought under other rules

Back 51

TRUE

Front 52

Under rule 404(a), can π every initiate the admittance of ∆ or victim's character evidence?

Back 52

No, ∆ must first bring evidence for either ∆ or victim

Front 53

Under Rule 404(b), for what purposes can π bring evidence of specific instances to show character?

Back 53

To prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident

Front 54

Under Rule 404(b), what process must π follow to bring evidence of specific instances to show character

Back 54

Upon request by ∆, π must (1) provide reasonable notice of the general nature of any evidence π intends to bring at trial and (2) provide such notice before trial OR for during trial for good cause

Front 55

What do the exceptions in Rule 404(b) pertain to?

Back 55

Allowing evidence of specific instances to show character

Front 56

TRUE OR FALSE: the 404 exceptions do not apply to civil cases

Back 56

TRUE

Front 57

Rule 405 says that there are 3

ways of bringing character evidence: _____, _______, _______.

Back 57

Reputation, Opinion, Specific Instances

Front 58

What is the difference between character evidence and habit evidence?

Back 58

Character = generalized description of one's disposition, or a general trait, such as honesty, temperance, or peacefulness

Habit = describes one's regular response to a repeated specific situation

Front 59

What rule governs habit evidence?

Back 59

Rule 406

Front 60

Rule 406 says habit evidence can be admitted for what purpose?

Back 60

To prove that on a particular occasion the person or organization acted in accordance w/ the habit or routine practice

Front 61

True or False: Habit evidence must be corroborated or eyewitnessed in order for the court to admit it.

Back 61

False.

Front 62

GENERAL RULE:

What evidence is prohibited in a proceeding involving alleged sexual misconduct? And does this rule apply to civil or criminal cases?

Back 62

412(a): evidence to prove that a victim engaged in other sexual behavior AND evidence offered to prove VICTIM's sexual predisposition is prohibited in a sexual misconduct case.

Applies to both civil and criminal

Front 63

Rule 412(b) provides an exception to admit certain sexual evidence in a CRIMINAL CASE. What is it?

Back 63

(1) Specific instance of VICTIM behavior If offered to show that someone else was the cause of semen, injury, other physical evidence

(2) Evidence of specific sexual behavior in relation to the accused if offered by ∆ to prove consent OR if offered by π

(3) if evidence exclusion would violate ∆'s constitutional rights

Front 64

Rule 412(b) provides an exception to admit certain sexual evidence in a CIVIL CASE. What is it?

Back 64

Evidence of VICTIM'S behavior or sexual disposition is allowed if its probative value substantially outweighs the danger of harm to any victim AND unfair prejudice to any party.

Front 65

Under rule 412(b), when can the court admit evidence of a VICTIM's sexual reputation?

In civil or criminal cases?

Back 65

reputation is only allowed if the victim has placed it into controversy.

CIVIL CASES only

Front 66

If a party wants to bring VICTIM's sexual evidence under rule 412, what process must they follow?

Back 66

Motion:

(1) Party must file a motion for the evidence and state purpose

(2) 14 days before trial

(3) Serve motion on other parties

(4) Notify victim/representatives

Hearing: must conduct in camera hearing

Front 67

In relation to victim's sexual evidence, does the victim need to be a party in the case?

Back 67

NO.

Front 68

In a sexual assault or child molestation case, when can the court admit evidence if ∆'s prior acts of sexual assault/child molestation?

Back 68

Rule 413-415 allow court to admit evidence of ∆'s prior acts as long as it is relevant

Front 69

In order for the court to admit evidence of ∆'s prior acts in sexual assault/child molestation case, do the prior acts have to be be charged or convicted?

Back 69

NO. Evidence can be related to an uncharged offense

Front 70

To bring evidence of ∆'s prior acts under rules 413-415, what must the proponent of the evidence do before admitting?

Back 70

Inform the ∆ of the evidence, including witness testimony, at least 15 days before trial (unless court gives extension for good cause)

Front 71

Are rules 413-415 (∆'s prior sexual acts) a 104(a) or 104(b) issue ?

Back 71

104(b) issue

Front 72

Under rule 407, when remedial measures are taken subsequent to the injury, evidence of such measures is not admissible to prove: _______, _______, _______, ________.

Back 72

(1) Negligence

(2) Culpable Conduct

(3) A defect in a product or its design; or

(4) A need for warning or instruction

Front 73

Under 407, when CAN the court admit evidence of remedial measures taken subsequent to the injury?

Back 73

Court can admit for a purpose other than (1) negligence, (2) culpable conduct, (3) a defect in a product or its design; or (4) a need for warning or instruction

- E.g. A purpose such as impeachment is ok

(IF DISPUTED) proving ownership, control, or the feasibility of such measures

Hint 73

(If disputed)

Front 74

Does the prohibition of subsequent remedial measures apply to civil or criminal cases?

Back 74

CIVIL only

Front 75

If a company, subsequent to an injury, takes a remedial action based on a government mandate, is this evidence prohibited by rule 407?

Back 75

No. The prohibition only applies to voluntary subsequent remedial action

Front 76

Under rule 408, what evidence relating to compromise offers and negotiations CANNOT be admitted to prove or disprove the validity or amount of a DISPUTED claim or to impeach by a prior inconsistent statement or a contradiction?

Back 76

An offer being given, offered, or accepted in order to compromise a claim

Conduct or a statement made during negotiations about a claim

Front 77

When can evidence of a compromising offer or negotiations be brought? (Exceptions to Rule 408)

Back 77

(1) relates to an undisputed claim or amount of claim

(2) criminal claim brought by public office

Front 78

Under rule 409, evidence of paying or offering to pay medical bills is not allowed to show _______.

Back 78

Liability for that injury

Front 79

Under rule 411, evidence that a person was insured or not insured against liability is not admissible to show ______.

Back 79

that the person acted negligently or otherwise wrongfully

Front 80

Does rule 411 apply to other types of insurance like casualty or property insurance?

Back 80

No.

Front 81

Under Rule 611(a), the courts should exercise reasonable control over the mode of examining witnesses and presenting evidence to ensure 3 goals:

Back 81

(1) making procedures effective to determine the truth

(2) avoid wasting time

(3) protect witnesses from harassment or undue influence

Front 82

Under Rule 611(b), what are the limitations of cross-examination?

(Scope)

Back 82

Cross can only be questioned on

(1) subject matter already discussed in direct examination

(2) witness credibility

UNLESS court allows otherwise

Front 83

Under 611(c), the court should allow leading questions for ______, _____, _____.

Back 83

(1) Direct IF necessary to develop witness testimony (narrow)

(2) On cross-examination
(3) when a party calls a hostile witness, an adverse party or witness identified w/ adverse party

Front 84

Can a direct witness be asked leading questions in relation to preliminary matters (name, age, etc.)?

Back 84

Yes.

Front 85

When can a non-expert witness testify to a matter? (Rule 602)

Back 85

They need to provide evidence that they have personal knowledge of the matter

Front 86

A expert witness can only testify in the form of an opinion or otherwise, IF they meet this 4 part test. (Rule 702 - assume they already qualified)

Back 86

(1) the expert's knowledge will help the trier of fact understand the evidence or determine a fact,

(2) the testimony is based on sufficient facts or data,

(3) the testimony is a product of reliable principles and methods, AND

(4) the expert has reasonably applied the principles and experts to the facts of the case

Front 87

What are the steps to evaluate an expert's testimony?

Back 87

(1) Qualified

(2) Reliable

(3) Helpful

(4) Must not be substantially outweighed by risk unfair prejudice, etc. (rule 403)

Front 88

An expert's testimony is "reliable" under Daubert when...

(There are 5 factors)

Back 88

(1) can be and has been tested

(2) peer review and publication

(3) error rates

(4) existence of standards and controls

(5) general acceptance

Front 89

True or False: Daubert only applies to scientific or technical expert testimony

Back 89

FALSE - applies to all.

Front 90

Before FRE, Frye provided a test for expert testimony. Name the test

Back 90

"General Acceptance" test

Front 91

What are the steps to assess eyewitness reliability?

Back 91

(1) Determine the significance of the witness identification in prosecution's case

(2) Exclude under rule 702 if within common knowledge of jurors

(3) Rule 403 balancing

Front 92

Under 703, once the expert witness is qualified & testimony found reliable, what can they base their testimony on?

Back 92

Pretty much anything they've previously heard

Front 93

Is expert testimony subject to 403?

Back 93

Yes, BUT if the probative value substantially outweighs the prejudicial effect = admissible (Rule 703)

Front 94

Rule 501 says that _________ governs rules of privilege unless, what?

Back 94

Common law,

Unless provided for by U.S. Const, Fed statute, or SCOTUS rules

(Unless civil case where state law provides basis for decision)

Front 95

Under rule 501, when does state privilege law govern?

Back 95

In a CIVIL case, when state law provides the basis for the claim or defense that supplies the decision

Front 96

When multiple states' privilege laws could apply, what happens?

Back 96

There is a presumption for the state's law that will allow admittance, BUT court will look to circumstances

Front 97

What is the 8-part attorney client privilege test to determine if communication is privileged

Back 97

(1) Where legal advise is sought

(2) From a professional advisor in his capacity as such

(3) the communication relating to that purpose

(4) made in confidence

(5) by the client

(6) at his insistence permanently protected

(7) from disclosure by himself or the legal advisor

(8) UNLESS the protection is waived

Front 98

(Attorney-Client Privilege)

In order for an attorney to be a "professional legal advisor in his capacity as such" when speaking with a friend or family member, what must they do?

Back 98

Clarify role --> there is a presumption that you are speaking in non-lawyer role

Front 99

(Attorney-Client Privilege)

Can an intermediary be a "professional legal advisor in his capacity as such" if they are not an attorney?

Back 99

Yes.

Front 100

To show that Attorney-Client Privilege applies, what is the legal standard and who has the burden?

Back 100

Standard: Preponderance of the evidence

Burden of proof: Party claiming privilege

Front 101

Are basic facts about a client ever protected under the Attorney-Client Privilege?

Back 101

No, but under certain circumstances, it COULD BE if there is a strong probability that disclosure would implicate client in the very criminal activity for which legal advice is sought (not a universal standard)

Front 102

What are the 2 tests to determine whether an employee is protected by attorney-client privilege (when client is company)? Just list them.

Back 102

Control Group Test

Upjohn Test

Front 103

What is the Control Group Test? (AC Privilege; Corp. Client)

Back 103

Looks to employee's position and whether they had control/had substantial part in making decision

Front 104

What is the Upjohn Test? (AC Privilege; Corp. Client)

Back 104

Balancing test

(1) made for the purpose of enabling counsel to provide legal advice for the corporation

(2) made at the request of the employee's supervisors

(3) concerning matters within the scope of employee's corporate duties

(4) confidential

Front 105

What are the 4 main exceptions to AC privilege (Not including waiver)

Back 105

(1) Crime-Fraud Exception

(2) Testamentary

(3) Breach of duty by lawyer or client

(4) Lawyer as attesting witness

Front 106

What are the elements of the crime-fraud exception?

Back 106

(1) Client engaged in or planned criminal or fraudulent conduct when he sought counsel's advice (or committed a crime or fraud subsequent to receiving counsel's advice)

(2) Counsel's assistance was sought in furtherance of the criminal or fraudulent activity

Front 107

Does the counsel have to be complicit or have a certain state of mind in order to fall into the crime-fraud exception?

Back 107

NO. Counsel's state of mind is irrelevant.

Front 108

True or False: The rule of completeness is an interruption rule.

Back 108

True

Front 109

True or False: The rule of completeness only applies to other portions of the writing or recording.

Back 109

False. It also applies to related writings and recordings.

Front 110

Does the rule of completeness apply to otherwise inadmissible evidence?

Back 110

We dunno. Open question.