Evidence II

Card Set Information

Evidence II
2014-03-08 15:31:42

Evidence Part 2.
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  1. 608 (a)  Method of Impeaching or Supporting Character for Truthfulness
    608.(a) W's Credibility may be attacked on direct (or supported if attacked first) with testimony of another W, in the form of:

    • (1)Reputation in the community for Untruthfulness (truthfulness);
    • (2)Opinion
    • (3) foundation is required for both. [establish basis of knowledge]

    • Only The Cross-Examining atty may inquire into specific instances of conduct,
    • * Must have good faith belief that they're true,
    • * Instances must be probative of untruthfulness (truthfulness).

    * May Redirect/Rehabilitate w/yet another W...

    **only applicable to Witnesses, (must testify)

    ** Only applicable to Credibility. (no other character trait inquiries)
  2. 608(b). Cross-Examining Character Witness
    • 608.(b)
    • (1) Extrinsic evidence of specific instance,
    • (2) may not be introduced. [must accept answer u get]
    • (3) to Support/Attack credibility of a witness. 
    • (4) But cross, may ask about them if probative of truthfulness + good faith belief.
  3. 610. Religion/Opinion
    • R. 610
    • 1) Evidence of W's Religion or Opinion;
    • Prohibited:
    • * to attack/support credibility.
    • Permitted:
    • *any other relevant purpose.
  4. 106. Completeness
              106.Rule of Completeness

    • (1) Party introduces writing or recorded statement; [no pics or videos]
    • (2) Adverse Party may:
    •   *require introduction (at that time) of any other part or any other writing or recorded statement;
    • (3) that in fairness ought to be considered together.
  5. 405. Character as Element
    • 405.
    • --Character trait that is an element of a party's claim or defense, may be proven by:
    • (1) Opinion,
    • (2) Reputation (in the community), and
    • (3) Specific Instances. (good faith belief + extrinsic evidence is okay).

    • *Foundation Required
    • * Defamation; Negligent Entrustment; Child Custody; Entrapment defense; Hat Crime Enhancement.
    • *Even if trait is of a non-party.

    --Where character is admissible but not an element proponent may introduce opinion and/or reputation only, and crosser can ask about RELEVANT specific instances.
  6. 404. Character as Propensity
    • 404. Evidence of a person's character (Good or Bad)
    • Prohibited = to prove Δ acted in accordance w/that character.

    • Allowed: Criminal Case Exceptions:
    • (1) Δ may offer of his own pertinent traitK may: 
    • ___* cross Δ w/specific instance Qs, and/or
    • ____*extrinsic (testimony) rebutting that trait.

    • (2) Δ offers evidence of Vics' pertinent trait (subject to rape shield law)
    • K may :
    • ___* Rebut it w/extrinsic evidence and/or ___* offer extrinsic evidence of Δ's same trait. (but bad)

    • (3) Homicide case + claim that vic was first aggressor
    • → K May introduce extrinsic evidence regarding Vics' peacefulness.

    **note--if Self defense claim + Δ's reasonable belief that vic was violent (not that vic acually startetd the fight) = does not open the door for K to introduce evidence of same trait in Δ. [the reasonableness of the belief is what is at issue]
  7. Legally Binding Statements (hearsay issue)
    Legally operative language is not hearsay when it is offered to prove the existence of the legal relationship that it creates..

  8. 404. Collateral Wrongs/Acts
    404. Evidence of any acts (good or bad),  other crimes, or wrongs.

    Prohibited--to prove Δ acted in accordance w/those other acts, crimes or wrongs.

    • Permitted--if probative to some material at issue Such as :
    • Motive, Identity (signature not mere same class of crime) , Absence of Mistake, Common Plan or Scheme, Opportunity or knowledge, Preparation.

    • 1. Must be Sufficiently connected to Δ (clear  convincing evidence, more likely than not);
    • 2. Criminal & Civil Court.
    • 3. No conviction/arrest/charge necessary;
    • 4. Wrong/Act (can't become feature of the trial & subject to 403).

    *FL→ Presumed Admissible Unless opponent shows wrong is likely to become feature of the trial and/or probative value substantially outweighed by danger of unfair prejudice.

    * FRE→ Presumed inadmissible, unless proponent can sucessfully argue one of the permitted purposes.
  9. 406. HABIT
    Persons habitual conduct or Organization's routine practice:

    Permitted--to prove person or organization acted in conformity w/that habit or organization if conduct is:

    • *Opinion & Specific Instance:
    • 1. Specific (always run that same red light..not ran all red lights)
    • 2. Regularity (regularly repeated...not necessarily every time thoug)
    • 3. Distinctive (usually happens in a specific context).
  10. 412. Rape Shield
    412. Rape Shield:

    • * Civil or Criminal +
    • * Involving Any Sexual Misconduct+
    • * Evidence is not admissible If Offered to Prove
    • (1) Vics' sexual behavior, or
    • (2) victim's sexual predisposition (willingness/unwillingness/reputation).

    • *Sexual Behavior--includes manner of speech, dress, flirtatious, actual sex etc...
    • * trial need not be about sexual misconduct...but need only contain it in any manner.
    • * bans evidence of vic's virtue and/or promiscuity all the same. [cuts both ways]

    (exceptions in other cards)
  11. 412. Rape Shield Criminal Exceptions
    Evidence of Victim's sexual behavior may be admitted if :

    * Criminal Case+

    * Specific Instance of Vic + to prove someone other than Δ was the source of physical evidence.

    * Specific Instance of Vic & Δ + offered to prove consent,or + offered by K for any reason.

    *Evidence whose exclusion would violate the (C). (rt to call witnesses & present defenses).
  12. 412. Rape Shield Civil Exception
    • * Specific Instance of
    • + vic's sexual behavior or sexual predisposition,
    • + if probative value substantially outweighs the danger of (1) harm to any Victim and (2) unfair prejudice to any party.

    * Reputation evidence may be admissible ONLY if Vic. puts it in controversy (puts it in issue).

    • *often seen in sexual harassment suits.
    • * bop on proponent.
  13. 413 Sexual Assaults &  [414 Child Molestation]; 415 (civil Involving sex assault/molestation)
    413 (Previous Sexual Assaults) and 414(Prior Child Molestations)

    • * Criminal Trial +
    • * Charged w/sex assault or child molestation

    415--Civil Trial + based on grounds of sex assault/child molestation →admitted for propensity or any other...purpose.

    • * No Arrest/charge needed.
    • * No time limit.

    Permitted--to prove propensity + and any other relevant matter.
  14. 104--Preliminary Questions.
    104. Judge not bound by Evidence Rules, except for privileges;

    104. Relevancy depending on a Fact must be proved by proponent as per Prima Facie Standard. [enough that any reasonable jury could find in a way that makes the fact relevant]

    • 104. Jury Shouldn't hear preliminary hearings if:
    • __Admissibility of Confession;
    • __Criminal + Δ +Witness + Requests Jury's removal;
    • __Justice requires removal...

    104. Parties are free to challenge the weight of the admitted evidence before a jury, by introducing evidence.
  15. 801. Hearsay

    • Statement
    • * Assertion intended to communicate a fact.
    • * by a person or w/human input.

    by declarant outside of current proceeding

    • Offered to prove the truth of the matter asserted.
    • **not hearsay if offered to show:
    • __Effect statement had on listener/reader;
    • __Legally Operative Language
    • __Circumstantial Evidence of declarants' state of mind.
  16. 802--Hearsay is not
    802--Hearsay is not admissible unless:

    • __Statutes,
    • __FRE,
    • __Scotus,
    • __or the Constitution mandats.
  17. 801. Hearsay Exceptions  (w's prior statement & admissions by party opponent)
    801--statements are not hearsay if:

    (1) Prior Witness Statement

    • __Declarant testifies+
    • __W is subject to Cross (if privilege = not subject to cross) +

    ***Inconsistent Statement + Made under Oath in hearing/proceeding/depo = proves the truth of that prior statement.


    *** Consistent + made in any context(no oath needed) + to Rebut a charge of fabrication/improper motive + must've been made b4 motive could've developed.


    ***Identifies a Person as someone declarant perceived.

    (2) Admissions by Party opponent:

    • * Statement offered against an opponent that:
    • __made by opponent;
    • __Manifested/adopted as true by opponent;
    • __Made by party authorized by opponent to speak on the matter;
    • __Opponent's agent or employee+ within scope+ while agency relationship existed;
    • __by co-conspirators + during/furtherance of conspiracy.