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2013-12-16 15:13:39
Federal rules Evidence

Federal rule of Evidence
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  1. What is 611(a)?
    Control by court. The court should exercise reasonable control over the mode and order of examining witnesses, and presenting evidence so as to avoid wasting time.
  2. What is 611 (b)?
    cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness's credibility. The court may allow inquiry into additional matters as if on direct examination
  3. What is 611(c)?
    leading questions should not be used on direct examination except as necessary to develop the witness's testimony. Ordinarily, the court should allow leading question on cross-examination
  4. What is 104?
    Preliminary question. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible

    aka Judges as gatekeepers
  5. What is 103(a)?
    Preserving a claim of error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party AND (next card)
  6. What are the two types and their requirements for preserving a claim of error?
    • (1)- if the ruling admits evidence, a party, on the record:
    • -timely objects or moves to strike, AND
    • -state the specific ground, unless it was apparent from the context
    • (2)- if the ruling excludes evidence, a party informs the court of its substance by an order of proof, unless the substance was apparent from the context
  7. What does 601 state about witnesses?
    • every person is competent to be a witness unless rule provide otherwise
    • -lawyers can testify as witness, may have PR issue if both a witness and representing the client
  8. What does 603 require of a witness?
    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.
  9. What does 605 require of judges?
    the presiding judge may not testify as a witness at the trial
  10. Explain 606(a) pre-verdict.
    A juror may not testify as a witness before the other jurors at the trial. If the juror is called to testify, the court must give a party an opportunity to object outside the jury's presence
  11. Explain 606(b) post-verdict
    • Juror may only testify about
    • -whether extraneous prejudicial info was improperly brought to the jury's attention
    • -whether an outside influence was improperly brought to bear on any juror
    • -whether a clerical error was made in entering the verdict on the verdict form
  12. What is present recollection refreshed?
    A party may use any item to refresh the memory of a witness.
  13. What does 612 state about present recollection refreshed?
    • (a) this rule gives an adverse party certain options when a witness uses a writing to refresh memory
    • (b) an adverse party is entitled to have the writing produced at the hearing
  14. What does 402 state about relevance?
    relevant evidence is admissible unless Constitution, statute, rules, or SC says otherwise

    irrelevant evidence is not admissible
  15. What is the definition of relevance in 401?
    • (a) it has any tendency to make a fact more or less probably than it would be without the evidence AND
    • (b) the fact is of consequence in determining the action
  16. What does 403 state about relevant evidence?
    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, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence
  17. What are the three steps according to Dutton for making an analysis under 403 (not in the rules)
    • 1. Determine the probative value
    • 2. Identify the presence of any of the six dangers (unfair prejudice, etc)
    • 3. balance the probative value against the identified danger to determine if the danger substantially outweighs the probative value

    (weighted towards admittance)
  18. What are the duties of the court stated in 105?
    court must restrict the evidence to its proper scope and instruct the jury accordingly
  19. What is an adverse party's option in 106?
    if a party introduces all or part of a writing or record 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
  20. Character Evidence
    The same thing we do every night Pinky, Try to Take Over the WORLD!!!
  21. What does 404(a)(1) state about character evidence?
    Prohibited uses- 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. 

    No propensity argument
  22. What are the exception provided in 404(a)(2)(A)?
    a defendant may offer evidence of the defendant's pertinent trait, and if the evidence is admitted, prosecutor may offer evidence to rebut it

    opening the flood gates
  23. What is another exception in 404(a)(2)(B)?
    • subject to limitations in rule 412, a defendant may offer evidence of an alleged victim's pertinent trait, and if the evidence is admitted, the prosecutor may: 
    • (i) offer evidence to rebut it
    • (ii) offer evidence of the defendant's same trait

    1-2 counter punch
  24. What is a third exception listed in 404(a)(2)(C)?
    in a homicide case, the prosecutor may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor
  25. How does 404(b)(1) further limit character evidence?
    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

    past acts- who cares if he stole your lunch money on the playground 30 years ago
  26. What does 404(b)(2) state about character evidence?
    this evidence may be admissible for another purpose such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
  27. What are the two procedural requirements under 404(b)(2)?
    • (A)- provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial AND
    • (B)- do so before trial or during trail if the court, for good cause, excuses lack of pretrial notice
  28. What does OKIAPIMP stand for?
    • Opportunity
    • Knowledge
    • Intent
    • Absence of mistake
    • Preparation
    • Identity
    • Motive
    • Plan
  29. What does 405 state about reputation or opinion?
    When evidence of a person's character trait is admissible, it may be proved by testimony in the form of opinion

    Use reputation or opinion testimony to prove OKIAPIMP, but not propensity
  30. What is the counter punch allowed under 405?
    • On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person's conduct.
    • Witness cannot introduce specific acts to prove OKIAPIMP
  31. What does 412 (a) state?
    a general prohibition of evidence of other sexual behavior or predisposition in both criminal and civil context
  32. What are the exceptions provided in 412(b)?
    • Criminal exceptions
    • (1) someone other than defendant was the source of physical evidence
    • (2) prior sexual relations between victim and defendant to prove consent or when offered by the prosecution
    • Civil Exceptions- admissible when the probative value substantially outweighs the danger of harm to victim and unfair prejudice to any party (weighted towards no admittance)
  33. What does 413 allow?
    similar crimes in sexual assault
  34. What does 414 allow?
    similar crimes in child molestation cases
  35. What does 415 allow?
    similar acts in civil cases concerning sexual assault or child molestation
  36. What does 406 allow into evidence?
    evidence of a person's habit 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. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness
  37. What are 4 differences between habit and character evidence?
    • -habits involve nonvolitional behavior- semi-automatic
    • -habits involve a repeated, specific response to a specific situation (always rolls through stop sign on edgelea dr. )
    • -character involves "moral overtones" that are not part of our notion of habit
    • -habits generally don't rely on the actions of other people
  38. What does 407 state about 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
    • -a defect in a product or its design OR
    • -a need for a warning or instruction

    Bust the court may admit this evidence for another purpose such as impeachment or if disputed, proving ownership, control, or the feasibility of precautionary measures
  39. What does 408 state about offers and negotiations?
    compromise offers and negotiations cannot be introduced as evidence
  40. What does 409 not allow into evidence?
    offers to pay medical expenses not admissible
  41. What does 410 not allow into evidence?
    discussions during plea negotiations are not admissible
  42. What does 901(a) state about authentication?
    to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is

    (chain of custody)
  43. What are some ways for authenticating evidence under 901(b)?
    • (b)(1)- testimony of a witness with knowledge: testimony that an item is what it is claimed to be
    • (b)(4)- the appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances
    • (b)(9)- evidence describing a process or system and showing it produces an accurate result
  44. What does 902 state about authentication?
    • Some evidence requires no extrinsic evidence of authenticity to be admitted
    • -sealed public documents
    • -certified copies of public records
    • -official publications
    • -newspapers (I've been kidnapped)
  45. What is best evidence rule mentioned in 1002?
    an original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise
  46. What is the definition of "writing" in 1001(a)?
    a "writing" consists of letters, words, numbers, or their equivalent set down in any form
  47. What is one exception listed in 1004(a)?
    an original is not required and other evidence of the content of a writing, recording, or photograph is admissible if all the originals are lost or destroyed and not be the proponent acting in bad faith
  48. What is another exception in 1006?
    • the contents of voluminous writing, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying or both, by other parties at a reasonable time and place. The court may order that they be produced in court
    • No extended LOTRs marathon
  49. What does 1007 allow for proving content?
    • the proponent may prove the content of a writing by the testimony, deposition, or written statement of the party against whom the evidence is offered. The proponent need not account for the original.
    • "That's not my email."
  50. Hearsay
    Swing low, sweet chariot
  51. What is the three components of hearsay?
    • -a "statement"
    • -made out of court
    • -offered to prove the truth of the matter asserted
  52. What is the definition of a statement in 801(a)?
    • -oral assertion
    • -written assertion
    • -nonverbal conduct- if the person intended it as an assertion
  53. What does 801(c) state about hearsay?
    • "hearsay" means a statement that
    • -the declarant does not make while testifying at the current trial or hearing AND
    • -a party offers in evidence to prove the truth of the matter asserted in the statement
  54. What are three reasons when hearsay is not hearsay?
    • -impeachment
    • -"verbal acts"- committed act of offering "massage", not specific words but completion of act
    • -effect on listener or reader
  55. What are the three non-hearsay instances listed in 801 (d)?
    • -"prior inconsistent statement"
    • -"prior statements of identification"
    • -"admissions by a party-opponent"
  56. What are the three requirements of "prior inconsistent statement"?
    • -declarant must testify at trial and be subject to cross-examination "about a prior statement"
    • -the prior statement must be "inconsistent" with present testimony
    • -the prior statement must have been given under oath
  57. What are the three requirements of prior statements of identification?
    • -declarant must testify at trial and be subject to cross-examination "about a prior statement"
    • -the statement is one of identification of a person
    • -the statement is made after perceiving the person?
  58. What are the 4 requirements of admissions by a party-opponent?
    • -out-of-court statement can be made anywhere and need not have been under oath
    • -any statement can qualify as a party admission
    • -made by the party in an individual or representative capacity
    • -is one the party manifested that it adopted or believed to be true
  59. What is the hearsay exception listed in 803(1)?
    present sense impression- a statement describing or explaining an event or condition, made while or immediately after the declarant perceived it
  60. What are the three requirements for present sense impression?
    • -statement must describe or explain an event or condition
    • -declarant must have perceived the event or condition
    • -statement must be made while the declarant was perceiving the event or immediately thereafter
  61. What is the hearsay exception listed in 803(2)?
    excited utterance- a statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused
  62. What is the hearsay exception in 803(3)?
    state of mind- then-existing mental, emotional, or physical condition
  63. What are the 4 uses for state of mind?
    • -declarant's then-existing physical condition
    • -declarant's then-existing mental or emotional condition
    • -declarant's later conduct
    • -fact about declarant's will
  64. What hearsay exception is in 803(4)?
    statements for the purpose of medical diagnosis or treatment
  65. What is the hearsay exception in 803(5)?
    • Recorded recollection
    • -witness lacks present recollection of the matter to enable full and accurate testimony
    • -statement accurately reflects knowledge she once had
    • -she made or adopted the statement AND
    • -she made or adopted the statement while the matter was "fresh" in her mind
  66. What is the hearsay exception in 803(8)?
    public records
  67. What are the 3 possible public records under 803(a)?
    • -the office's activities
    • -a matter observed while under a legal duty to report, but not including a criminal case, a matter observed by law-enforcement personnel (not police reports)
    • -in a civil case or against the government, factual findings from a legally authorized investigation
  68. What is the requirement for public record in 803(B)?
    neither the source of info nor other circumstances indicate a lack of trust worthiness
  69. What are the two requirements for an unavailable declarant in 804?
    • (a) necessity
    • (b) fits into 6 hearsay exceptions
  70. What are the 5 situations for necessity in 804(a)?
    • -claim of privilege
    • -refusal to testify
    • -lack of memory
    • -death, illness, infirmity
    • -unavoidable absence
  71. What are the 6 hearsay exceptions for an unavailable declarant in 804(b)?
    • -former testimony
    • -dying declaration
    • -statement against interest
    • -personal or family history
    • -807
    • -forfeiture by wrongdoing
  72. What are the requirements for the former testimony exception under 804(b)(1)?
    • -previously testified in another trial, hearing, or deposition
    • -adverse party had
    • ---an opportunity to develop prior testimony
    • ---"similar motive" to develop testimony
  73. What are the 4 requirements for a dying declaration under 804(b)(2)?
    • -prosecution for homicide or a civil action
    • -declarant believed death to be "imminent"
    • -about "cause or circumstance"
    • -based upon personal knowledge of the declarant
  74. What is the definition of statement against interest under 804(b)(3)?
    the statement must be "so contrary" to declarant's interest that a reasonable person would not have made the statement unless believing it to be true
  75. What is the requirement of forfeiture by wrongdoing in 804(b)(6)?
    -adverse party caused unavailability
  76. What is the Constitutional limitations to hearsay?
    -Confrontation clause- in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him
  77. What is the crawford rule for constitutional challenges to hearsay?
    • -out-of-court testimonial statements by declarants are not admissible against criminal defendants UNLESS
    • -defendant has the opportunity to cross-examine declarant at trial OR
    • -declarant is unavailable AND
    • -defendant had a prior opportunity to cross-examine the declarant
  78. What is the definition of testimonial and some examples of non-testimonial?
    eye towards prosecution

    • -casual remarks to acquaintances
    • -personal conversations with no government involvement
    • -statements made by co-conspirators in furtherance of a conspiracy
  79. What are the 5 forms of impeachment?
    • -bias
    • -incapacity- failed perception of events
    • -dishonesty
    • -inconsistency
    • -specific contradiction- having outside evidence to specifically contradict the declarant
  80. What are three options for proving dishonesty?
    • -through evidence of non-conviction dishonest acts (through cross-examination only)- 608(b)
    • ---can't prove up
    • -through evidence of convictions- rule 609
    • -through character witnesses- 608(a)
  81. What is 609(a)(1)?
    Certain crimes (felonies or crimes punishable by more than 1 year in prison) may be admissible to impeach a witness, but only if the conviction satisfy the balancing requirements that are set forth in the rule
  82. What are the two options under 609(a)(1)?
    • -defendant's felony conviction: admitted against defendant only if the probative value outweighs its prejudicial effect to the accused (weighted against admittance)
    • -witness's felony conviction: admitted against witness unless the probative value is substantially outweighed by the danger of unfair prejudice (weighted towards admittance)
  83. Expalin 609(a)(2)
    provides for automatic admissibility of any prior conviction of a witness- dishonest act or false statement connected with conviction
  84. What are the 5 crimes that fall under 609(a)(2)?
    • -perjury
    • -subornation of perjury
    • -false statement
    • -criminal fraud
    • -embezzlement
  85. What does Harris v NY state about impeachment?
    can use testimony for impeachment despite giving no miranda warnings
  86. What does Doyle v Ohio state about impeachment?
    can't use for inconsistent statement if defendant stayed quiet after receiving miranda warnings and then testifying in court
  87. What does Jenkins v Anderson state about impeachment?
    -silence could possibly be used against defendant before receiving Miranda warnings (for both in custody and not in custody)
  88. What are two types of privileges?
    • -psychotherapist-patient privilege
    • -spousal privilege
    • ---can decide to testify, but can't disclose info that would be confidential between spouses
  89. What does rule 701 state about witness testimony?
    • -if a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is
    • ---rationally based on the witness's perception
    • ---helpful to clearly understanding the witness's testimony or to determining a fact in issue, AND
    • ---not based on scientific, technicial, or other specialized knowledge within the scope of 702
  90. What does 702 state about expert testimony?
    • A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
    • -expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue
    • -testimony is based on sufficient facts or data
    • -testimony is the product of reliable principles and methods, AND
    • -the expert has reliably applied the principles and methods to the facts of the case
  91. What is the restriction in 704 for expert testimony?
    in a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense