Evidence I

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  1. FRE 1101
    The Federal Rules of Evidence apply to:
    (a) Federal Courts and Federal Judges

    (b) Criminal; Civil; Maritime & Contempt trial proceedings. (unless JD witnessed the contemptuous conduct)

    (c) Privileges apply to all stages of a case. [even if the FRE itself doesn't apply]

    • (d) Exceptions
    •         1. Prelim. Q of Fact
    •         2. Grand Jury
    •         3. Miscellaneous...
  2. Miscellaneous Proceedings not subject to the FRE:
    • 1. Extradition or Rendition hearings
    • 2. Grand Jury
    • 3. Issuance of Arrest/Search Warrant
    • 4. Prelim. Examination in Crim. case
    • 5. Probation
    • 6. Bail
  3. FRE 103

    Process for Contesting Evidence at TC for Appeal:
    • (1) Objections [OBJ]  and/or Mot.to Strike [MTS]
    •      *  Must be Timely & Specific or
    •           waived.
    •      * Obj--b/4 jury is exposed to   
    •                  evidence.
    •      * MTS--after exposure.
    • (2)Offer of Proof [OOP]
    •      *  Must be given by party introducing 
    •           evidence.

    (3) if Definite Ruling Renew objct, /m/t/s nor oop.

    (4) Jury should be shielded from inadmissible evidence.
  4. FRE 105 Limiting Instruction
    Must be Issued by TC, upon Request if (1) evidence admitted may be used for one purpose but not another. (atty's weigh the cost benefits of asking for this instruction)
  5. FRE 103(a)
    Appellate Court [AC] Reversal of Evidentiary Ruling on Preserved Error:
    • (1) Reversal is RARE b/c preserved error must have substantially affected the rights of the Party.
    •     *Substantial Affect = only if outcome would've been different.

    (2) AC defer to TC on most evidentiary decisions b/c TC are more in tune w/foc.

    (3) most errors are "harmless errors"
  6. FRE 103(e)
    Notice of PLAIN ERROR even if Unreserved:
    • CT may take notice of Plain Error (even if not preserved at TC level) if the Error:
    •   (1) is Obvious & Clear under current law;
    •   (2) Substantially affects Rights of Party
    •   (3) Seriously injures fairness, integrity of CT
    •       if not corrected.
  7. FRE 401
    Relevant Evidence must :

    • (1) Tendency to make a fact more or less probable....and
    •     *regardless of whether the fact is disputed
    •       or not.

    • (2) that fact must be of consequence to the controversy at stake.
    • * there must be some link between the fact tending to be established by the evidence, and the substantive law (claim or defense).
  8. FRE 403

    Even if relevant, some evidence may be excluded by the Cts' balancing test if:
    • it's 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.
    •     (1) Prejudice
    •     (2) Confuse Issue or Mislead
    •     (3) Waste of Time
  9. A Probative relationship exists when
    Evidence that makes a factual proposition more (or less) likely, than it would be if the evidence were not present.
  10. FRE 401 402 & 403

    Evidence must be excluded if
    • (1) irrelevant;
    •    *probative [make fact more or less likely]
    •    *of consequence (fact & law)
    • (2) Unfairly prejudicial; Waste time, or Confuse/Mislead.
    • (3) Cant survive scrutiny under EVERY rule (few exceptions).
  11. Real Evidence
    • Party claims:
    • 1. played a direct role in controversy, and

    • 2. Must be authenticated
    •                   (testimony that it's what it
    •                      claims to be)
  12. Limiting Instruction

    Rule 105
    (1) Evidence is admitted for one purpose, that would be inadmissible for another purpose/or against another party.

    (2)If  Party timely requests limiting instruction,

    (3) Court must restrict as appropriate & instruct the jury accordingly,
  13. Rule 103 (a)
    Party on appeal may claim error on evidentiary ruling only if :

    (1) error affected a substantial right = opposite ruling would have changed outcome of
  14. Unfairly Prejudicial
    Evidence that lures jurors into finding for or against a party on some different ground from what the law demands.
  15. Unfairly Prejudicial Factors:
    1. Extent of arousal of strong emotion or irrational prejudice.

    2. Extent that evidence may be overvalued

    3. How strong/weak the connection is b/w the evidence & the essential element of the case.

    4. Whether same fact can be proven by other evidence.

    5. Whether redaction/limiting instruction would help.
    To Claim Error on a ruling: 

    (a) Ruling adversely affected substantial right,

    (b) Objections/Motions to Strike must be Timely, and Specific.

    (c) Proponents must inform court of substance and give offer of proof.

    (d) No need to renew after definitive ruling.

    (e) Plain error =
    AP ct can reverse evidentiary ruling on its own. if: (1) clear & obvious; (2) substantial right; (3) Jeopardy to integrity/justice system.

    Subsequent Remedial Measures

    Subsequent Measures, taken after the plaintiff suffered his injury, that would have made the injury less likely to occur

    • (1) is not admissible to prove:
    •      () Negligence; ()culpable conduct; () Design Defect; () Need for Instruction/warning.

    • (2) but IS admissible to prove:
    •      =ownership (if expressly disputed)
    •      =Feasibility (if expressly disputed)
    •                **if no safer alternative due to some practical/financial restraint.
    •      =Impeachment,
    •                **Specific representations of absolute safety.
    •      = any other purpose....

    (1) Conduct and Statements made by any party while furnishing, promising, offering, accepting, a valuable consideration in compromise or attempt to compromise a claim, may not be introduced by any party.

    •      =Claim Must be disputed (mere offer of $ alone is not enough)
    •      =Must have involved a quid pro quo

    •        (prohibited) to prove or disprove: 
    •                      validity, amount of damages;
    •                      nor to impeach defendant. 
    •           = Applies to criminal &/or civil
    •           =If criminal = must've been made to atty. w/prosecuting authority.

    • ( allowed ) to prove:
    •               (1) Showing Witness Bias (a settled Witness may have a stake in wanting one side to win);
    •               (2) Arguing for or against against a claim of Undue Delay or Obstruction of justice (def.put it at issue)
    •               (3) conduct/statements were made during a civil proceeding (involving government agency) & proponent wants to introduce it in a criminal case.

    • (1) Payment/Offer of payment for medical injury.
    •          (prohibited) to prove liability.

    • (2) All other statements/conduct of fact are admissible.   {DON'T ADMIT FAULT}     
    •              (allowed) any other purpose.

    • Subject to 403 (prejudice)
  20. 410--Plea Bargaining  [policy]

    • (1) Offers to plead guilty & statements by Def. in connection w/that offer, during plea discussions w/prosecuting attorney, if:
    •        =if no plea resulted;
    •       =if nolo contender;
    •       =if plea is withdrawn b/4 judgment.
    • (Prohibited to use)
    •                   = against that Def.
    •                   =for any charge,
    •                   =in either civil or criminal.

    • (Except allowed when)
    •             =D puts it at issue by introducing part of the discussion first.
    •            =criminal proceeding for perjury/false statement.
    •            =Successful plea w/judgment. (may be used in subsequent civil proceeding)
    •            =Waiver--if D agrees to waive this provision.
    (1) Attorney of prosecuting authority;

    (2) D displayed actual subjective expectation of negotiation;

    (3) That expectation was reasonable.
  22. Perjury or false statement proceeding
    (1) Statement made under Oath;

    (2) On the Record, and

    (3) w/ Counsel present.
  23. 411--LIABILITY INSURANCE [little probative value]
    • Evidence that a person has or does not have liability insurance is:

    • (Prohibited) to prove:
    •                = fault; negligence.

    • (Allowed for)
    •              = any other purpose;
    •              =witness bias;
    •              = control;
    •              = agency; 
    •              =Ownership
    •              =subject to 403 [prejudice]
  24. 601 COMPETENCE
    Every person is competent unless rules say otherwise.

    • *Appreciate duty/difference b/w truth & lie;
    • * Minimally capable of observing, recalling & communicating events.
  25.                  602    Perception
    A competent witness must have personal knowledge (must testify to having perceived facts they testify to), Unless Expert Witness.
  26.              605  Judge Competence
    Presiding judge may not testify. (no need to reserve this error)
  27.                          606 Juror
    Juror may not testify as a witness during the trial. [party must object to preserve error]

    *a past juror is okay, but no to attack prior conviction.
  28. 611 Mode & Order of Examinations
    611--No leading questions on Direct Examination except with:

    • 1. Hostile Witness;
    • 2. Adverse Party;
    • 3. Adverse Party's Witness.
  29. 611--Mode & Order of Examinations  {cross}
    611--Cross Examiners may use leading questions but Must stay within the scope of subject matter of direct examination, and matter affecting credibility.

    *not if W is the atty's own client & non-hostile.

    *JD may allow crosser to stray from scope but must not use leading qs then.
  30. 614. Court's Examination of Witness
    614. The Court:

    1. Can call on its own or Request;

    2. All may cross;

    3. Objections (may be contemporaneous or as soon as jury is gone.
  31. 615. Witness Exclusion
    {the "rule"}
    • 615.
    • The court may exclude a witness from the room on its own, but
    • If a Party Requests;
    • Court must exclude Witness from hearing other testimony,
    • Unless the excluded witness is:

    • 1. A party;
    • 2. Represetative of Entity Party;
    • 3. Essential Person (expert);
    • 4. Statute Person.
  32. Common Objections
    • Asked and Answered
    • Non-Responsive
    • Leading
    • Argumentative
    • Assumes Facts not in evidence
    • Beyond Scope
    • Calls for Speculation
    • Harassing
    • et...
  33. unfair prejudice variations of 403, 609
    403--BOP is on party objecting to the evidence = "probative value of evidence is  substantially outweighed by danger of prejudice."

    609--Defendant + Witness + Ex-convict/crime of dishonesty+ Criminal Trial = BOP is on K to show "probative value of evidence Outweighs the prejudicial affect to that def." [less likely to come in]

    609--Not the Defendant +witness + any trial= felony/dishonest = bop is on objecting party to show probative value of evidence is substantially outweighed by danger of unfair prejudice. [more likely to come in]

    • 609--conviction over 10 years old = BOP is on proponent of evidence to show "Probative value of evidence, supported by specific circumstance, substantially outweighs prejudicial effect " + must give notice & opportunity to contest.
    • [less likely to come in]
  34. 612--Memory Recollection
    612--Refreshing Memory

    • 1. Memory exhausted;
    • 2. Any Item (no admissibility required)
    • 3. Memory must be "refreshed"
    • 4. Opponent must be able to review + Cross + Enter into evidence the item (even if inadmissible)
    •     * if item is not produced = testimony may be struck & maybe even a mistrial.
    •     *irrelevant portions may be redacted before introduction BUT must be saved for the record.
  35. 607--Ability to Impeach
    607--Any party may impeach any witness.
  36. 613--Inconsistent Statements
    613. Inconsistent Statements

    • 1. Any witness may be crossed w/any prior collateral, inconsistent statement:
    • No need to show statement to witness.

    * if Asked = Must disclose contents to adverse attorney.

    2. Must accept whatever answer he gets = no extrinsic evidence of collateral matters.

    3. But, If matter is relevant to some fact in consequence = may introduce extrinsic evidence (other testimony/docs etc) to impeach.
  37. 404. Propensity Generally Prohibited
    404--Character, prior bad acts, is not admissible to prove propensity unless:

    • 1. D introduces character evidence of himself = opponent can rebut.
    • 2. D introduces evidence about Victim = adversary can rebut & introduce evidence of same charater trait in D.
    • 3. In Homicide case =  K can introduce evidence of victim's peacefulness.
  38. 608--Specific Instances of Untruthfulness
    608. Untruthful Specific Instances

    • 1. On Cross-Examination;
    • 2. Specific Instances questions ONLY;
    •       [good faith belief required]
    • 3. Probative of tendency to lie or/lack of;
    • 4. @ Ct's discretion.
    • 5. Must accept whatever answer you get.
    •       [no extrinsic]
  39. 609--Felony & Crimes of Dishonesty Convictions
    609. Felony & Crimes of Dishonesty Conviction must come in if:

    • 1. In any trial;
    • 2. Witness is not the accused;
    • 3. Extrinsic evidence of Felony;
    • 4. or Crime of Dishonesty/false statement.  [comes in w/out balancing test]
    •   --Fed. requires it have been an element of crime.  [name of crimes come in]
    •   --FL. merely asks whether manner of commission of any crime involved any dishonesty. [o]nly # of convictions come in
    • 5. objecting party has bop to show probative is substantially outweighed by unfair prejudice.
    • 6. Must be Less than 10 years since release or conviction. {later one}
    • 7. Unless Pardoned b/c of innocence, or Rehab + no subsequent felony convictions.
  40. 609--Juvenile Adjudications as Crimes of Dishonesty
    609. Juvenile Adjudications are admissible if:

    • 1. Criminal Case;
    • 2. Witness is not the Accused;
    • 3. Adjudication meets all the requirements for 609 felony conviction/crime of dishonetsy;
    • 4. Extrinsic Evidence is necessary to determine guilt or innocence.
  41. 609.--Felony & Crimes

    (witness.is.accused & convicted felon)
    609--A past felony conviction must be admitted if:

    • 1. Criminal Trial;
    • 2. Witness is Accused;
    • 3. Extrinsic Evidence Felony;or [Crime of Dishonesty (Fed. and/or Florida) comes in w/out balancing test]
    • 4. heavy bop on K to show probative value outweighs the prejudicial effect to that one accused;
    • 5. Judge makes formal finding of probative weightiness.
    •     (balance factors)
    • 5. Less than 10 years since release/conviction (later).
    • 6. Unless, Pardoned for Innocence, or for Rehabilitation + no subsequent felony convictions.
  42. 609. Felony & Dishonest Crime Conviction.
    609--Felonies & Crimes of Dishonesty over 10 years old, may be admitted if:

    • 1. Any trial;
    • 2. Any Witness;
    • 3. Extrinsic evidence of Felony.
    • __crime of dishonesty comes in w/out balancing test.
    • 4. Over 10 years ago;
    • 5. bop is on proponent to show probative value of conviction + supported by specific circumstances Substantially Outweighs its prejudicial effect:
    • 6. Notice + Opportunity to Contest is given.
  43. 400s
    • 401. Relevancy
    • 402. Relevance
    • 403. Unfair Prejudice/Delay/Confusion
    • 407. Subsequent Remedial Measures
    • 408. Statements/Conduct/Offers to Compromise.
    • 409. Statements/Conduct of Criminal Pleas.
    • 410. Payments/Offers of Medical
    • 411. Liability Insurance
  44. 600s
    • 601. Competence
    • 602. Personal Knowledge
    • 603. Oath or Affirmation
    • 604. Interpreters
    • 605. Judge
    • 606. Jury
    • 607. Impeachment
    • 608. Untruthful Character by Specific Instances
    • 609. Convictions
    • 610. Religion,Belief or Opinion;
    • 611. Mode of Questioning/Cross
    • 612. Memory Refreshed
    • 613. Inconsistent Statements (prior)
    • 614. Judge Examinations
    • 615. Excluding Witnesses (from room)
  45. 603--Oath or Affirmation
    603. No magic words, but must accept and understand duty to tell truth.
  46. 604--Interpreters
    604. Interpreters must:

    • 1. Qualified;
    • 2. Oath or Affirmation to make true translation.
Card Set:
Evidence I
2014-02-11 00:00:00

Cards for Evidence I.
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