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  1. Watch out for answer choices that may be correct under common law, but are inconsistent with the Federal Rules of Evidence
  2. Judge is the trier of the law; jury trier of fact
  3. judge determines which evidence is admissible, jury determines credibility or weight assigned to that evidence
  4. a ruling is erroneous, the party must notify the court
  5. offers of proof must be made outside the jury's prsence. Counsel must explain the relevance and the admissibility of the testimony
  6. plain error rule= the error is so obvious that an objection is not necessary. Happens when a substantial right is affected and the grounds are reversible
  7. Evidence can be admitted for just one purpose
  8. judicial notice= the court's acceptance of a fact as true without requiring formal proof. Only applies to adjudicative facts (e.g dates), not legislative facts (e.g. elements of a rule).
  9. judicial notice cannot be subject to any reasonable dispute. They are generally known facts
  10. judicial notice: the fact must be accurately and readily determinable and from a source that cannot be reasonably questioned
  11. a party can ask a court to judicially notice a fact at any time during the trial/appeal or court can take judicial notice on its own initiative
  12. judicial notice: EXCEPT court may not take judicial notice against a criminal defendant for the first time on appeal
  13. court MUST take judicial notice if:
    requested AND
    necessary information is given to court
  14. judicial notice: civil juries MUST accept that fact as true
  15. criminal juries MAY accept that fact as true
  16. In a civil case, two parties (P & D). In a criminal case, only the D is a party. The gov't, prosecution, state, etc are not a party
  17. a judge may question and call witnesses. A judge may also object
  18. cross-examination of a witness is limited to:
    • the scope of direct and
    • credibility
  19. credibility is always at issue
  20. D does not waive his 5th Amend privilege by answering preliminary questions
  21. Improper questions: leading questions suggests the answer in the questions and not allowable on direct. BUT allowable on cross.
  22. leading question exceptions:
    -foundations questions or basic information are not leading questions (e.g. your name is Major Rathbone? You were in the viewing box on April 14th?)
    - a witness who has trouble communicating (e.g. a child)
    - an adverse or hostile witness on direct
  23. improper questions: compound questions require multiple answers
  24. improper questions: questions that assume facts not in evidence
  25. improper questions: intended to provoke and argument
  26. improper questions: 
    -leading questions
    - questions that assume facts not admitted in evidence
    - argumentative questions 
    -compound questions
    -questions that call for a conclusion for which the witness is not qualified
    - repetitive questions that have been asked and answered.
  27. witnesses shall be excluded upon the motion of a party or upon the court's own motion. This is a way to prevent contamination of the witness.
  28. exclusion exceptions (witnesses who may NOT be excluded from the courtroom):
    a party
    an officer or employee who is the designated representative of a corporation; 
    an advisory witness; and
  29. burden of production:
    - a party must make a prima facie case
    - the party with this burden must present enough evidence that the reasonable trier of fact could infer that the facts had been proved
  30. burden of persuasion:
    - degree to which legally sufficient evidence must be presented
    - this burden DOES NOT shift
    - the trier of fact determines whether this burden has been met
  31. burden of persuasion: in a civil trial, but be by a preponderance of the evidence
  32. burden of persuasion: in a criminal trial= beyond a reasonable doubt
  33. presumption= a conclusion the trier must draw regarding a basic fact
  34. rebuttable presumption: if no contrary evidence is presented, a judge must instruct the jury to accept the presumption
  35. rebuttable presumption shifts the burden of production to the other side
  36. a conclusive presumption may not be challenged
  37. use Erie Doctrine if state law governs the effect of presumptions
  38. a destruction of evidence raises the presumption that it would have been unfavorable to the destroying party
  39. destruction of evidence: party seeking to use presumption must show:
    -destroyed intentionally
    -evidence was relevant; and
    - victim acted with due diligence to prevent or recover
  40. All relevant evidence is admissible, unless it is excluded by rule, law, or constitutional provision.
  41. relevant= probative and material
  42. probative= any tendency to make a fact more or less probable than it would be without that evidence
  43. material= a fact of consequence
  44. relevant evidence may be excluded if its probative value is substantially outweighed by the danger of:
    • unfair prejudice
    • confusing the issues
    • misleading the jury
    • undue delay, waste of time; or
    • needles presentation of cumulative evidence
  45. when relevant evidence depends on the existence of another fact, it is admissible if sufficient proof of the other fact is introduced. Standard is by a preponderance of evidence.
  46. character evidence is general information about a person's behavior.  Typically not admissible to prove conforming conduct of D in civil cases or propensity of D in criminal cases, EXCEPT
    • - in civil cases:
    • ~past sexual assault and molestation by defendant in sexual assault an molestation cases
    • ~ when character is an essential element of the offense (e.g. defamation, negligent hiring, negligent entrustment, child custody, etc.)

    • - in criminal cases:
    • ~ D may present evidence of good character that is inconsistent with the type of crime being charged (e.g. evidence of being a peaceful person if a charge of battery).
  47. In criminal case, character evidence must be through reputation or opinion testimony
  48. character evidence: criminal cases: the prosection may introduce character evidence to rebut the D's evidence but it MUST relate to the same character trait
  49. character evidence: criminal cases: D does not "open the door" to prosecution's attack simply by taking the stand.
  50. character evidence: victim's character: a criminal D may introduce evidence of victim's character that is relevant to one of the defenses asserted
  51. character evidence: victim: prosecution can offer good character evidence only after D has attacked victim's character
  52. methods of proving victim's character:
    • reputation
    • witness opinion
    • prior specific acts
  53. impeachment= calling into question the credibility of a witness
  54. impeachment of a witness: character evidence of witness' untruthfulness is relevant to impeach. It applies to D if D testifies
  55. specific prior acts of a witness: prior bad act is not admissible to prove conforming conduct (i.e. propensity) UNLESS it is evidence used to show:
    • [MIMIC are primary ones]
    • -motive
    • - intent
    • - absence of mistake
    • - identity
    • -common plan
    • -lack of accident
    • -preparation
    • -knowledge
    • -opportunity
  56. specific prior acts of witness: prosecution must give advance, reasonable notice
  57. prior bad acts: form:
    • civil cases:
    • -specific instances of conduct
    • - reputation
    • - opinion

    • criminal cases
    • - prove something other than propensity (e.g. MIMIC)
    • - to cross-examine a character witness
  58. Habit is a person’s particular routine reaction to a specific set of circumstances.
  59. habit evidence is admissible to prove conduct in conformity therewith
  60. habit evidence may be admitted without corroboration or an eyewitness
  61. a judge may not testify in trail over which she presides
  62. after a trial, jurors may not testify about:
    statements made during deliberation
    effect of anything on a particular juror's vote; and
    any juror's mental process UNLESS
    extraneously prejudicial info was brought in
    outside improper influences OR
    mistake in entering the verdict on the form
  63. court decides competency of a child who will be a witness
  64. bases for impeachment:
    • Bias
    • Finanical interest
    • character for untruthfulness
    • inability to perceive what they are testifying about
    • inability to testify accurately
    • prior inconsistent statements
    • another contradictory witness or evidence
  65. any party can impeach a witness
  66. impeach for untruthfulness: form:
    • reputation
    • opinion
    • specific instances
  67. character for truthfulness: credibility may not be bolstered until it has first been attacked
  68. extrinsic evidence of specific instances of untruthfulness is generally not admissible.
  69. Character for untrutfulness may not be admitted for witness impeachment if:
    • - probative value is substantially outweighed by unfair prejudice
    • - harrassing, argumentative, etc.
  70. must have a good-faith belief that witness has a character of untruthfulness
  71. an arrest may not be a basis to impeach a witness for untruthfulness. HOWEVER, may cross-examine a witness about the underlying conduct. MAY be used to impeach on other grounds
  72. by testifying on another matter, a witness does not waive the privilege against self-incrimination for testimony relating only to the witness' character.
  73. a prior crime is a possible basis for impeaching a witness' character for truthfulness IF
    • - it is a prior conviction (including misdemeanors) for a crime of dishonesty or false statement that occurred within the last 10 years OR
    • - if it was a prior conviction punishable by death or imprisonment for more than one year (i.e. a felony) that occurred within the last 10 years
  74. if a witness was a defendant in a criminal trial (whether convicted or not) this is admissible for impeachment if its probative value outweighs the potential prejudicial effect to that defendant
  75. if a witness was not a criminal defendant, evidence for impeachment must be admitted, but it may be excluded when the party objecting to impeachment shows that its probative value is substantially outweighed by its prejudicial effect
  76. To admit evidence of conviction of release that occurred over 10 years ago, evidence is admissible ONLY if the probative value substantially outweighs the prejudicial effect and proponent gives sufficient advance written notice
  77. evidence of conviction is not admissible if the criminal conviction/defendant was:
    • pardoned
    • annulled
    • later found innocent
    • rehabilitated
  78. evidence of a conviction is not admissible if a juvenile witness is the defendant
  79. if juvenile witness is not a defendant, evidence of a conviction admissible if:
    • offered to show truthfulness
    • offered in a criminal case
    • it would be admissible if an adult; AND
    • admitting evidence is necessary to fairly determine guilt or innocence
  80. a criminal D can use witness' juvenile conviction to impeach by showing bias
  81. can prove convictions by:
    • witness's admission OR
    • extrinsic evidence
  82. a witness's conviction may be used for impeachment purposes even if the appeal is still pending
  83. impeaching a witness: prior inconsistent statement: does not to be sworn, but extrinsic evidence about statement generally may only be introduced if the witness was given the opportunity to explain or deny the prior inconsistent statement.
  84. prior inconsistent statement DOES NOT require witness to explain or deny IF:
    • -impeaching a hearsay declarant
    • - admission of a party opponent
  85. extrinsic evidence of a prior inconsistent statement cannot be used to impeach a witness regarding a collateral matter.
  86. impeaching a witness: bias: if witness has a relationship to the party (witness employed by the party) or an interest in the outcome of a case (e.g. witness who cut a deal with the prosecution). Foundation must be laid before extrinsic evidence can be introduced.
  87. impeachment: may be impeached by showing witness has a deficiency in ability to perceive, recall, or relate information
  88. impeachment: hearsay declarant: may be impeached by any evidence that would have been admissible had the declarant testified. declarant need not be given an opportunity to explain or deny
  89. a witness who has been impeached can be rehabilitated by:
    • reputation or opinion evidence with regard to truthfulness or
    • by a prior consistent statement
  90. religious beliefs are not admissible to attack or support a witness' credibility, UNLESS it shows bias or interest
  91. a witness may be impeached by evidence that is contradictory to the witness' testimony
  92. may not impeach the credibility of a witness by introducing extrinsic evidence of a collateral matter
  93. present recollection refreshed: a witness may examine any item to refresh the witness's present recollection BUT the witness may not use the object or item while testifying (e.g. read from document)
  94. present recollection refreshed: the item used to refresh is not admitted into evidence, however on cross, the opposing party may introduce the item into evidence and opposing counsel has a right to inspect the item.
  95. past recollection refreshed: a memorandum or record regarding a matter about which a witness once had knowledge may be read to the jury, but not admitted unless offered by opposing counsel
  96. lay witness generally cannot testify about an opinion unless it is a common sense impression based on perception and helpful to clarify the understanding of a fact at issue
  97. If an expert witness:
    - court must determine that testimony is scientific, technical or specialized (reliable) and will help the trier of fact.
    -Qualified expert must show the witness is qualified, testimony is based on sufficient facts or data; testimony is the product of reliable principles and methods; and witness applied those principles and methods to the facts of the case
  98. an expert may give an opinion on an ultimate issue EXCEPT expert may not give an opinion on whether a criminal D had the requisite mental state for the crime charged.
  99. an expert's opinion may be based on personal observations or data that was provided that is reasonable for experts to rely on or hypotheticals.
  100. all physical objects and documents (i.e. tangible evidence) must be authenticated
  101. authenticating physical evidence: reproductions: a witness who has personal knowledge must testify that it accurately depicts what it is claimed to represent.
  102. authentication: x-rays must meet four criteria
    1) accurate process
    2)machine working properly
    3) qualified operator and
    4) show a chain of custody
  103. types of documentary evidence:
    • ancient documents
    • public records
    • reply letter doctrine
    • handwriting verification
  104. ancient documents (more than 20 years old) in a condition unlikely to create suspicion found in a place it would likely be found.
  105. authentication: record recorded or filed in a public office as authorized by law or document is from the office where items of that kind are kept
  106. handwriting verificaton= a non-expert witness who recognizes the handwriting but didn't become familiar for litigation purposes OR an expert witness or the jury compares the writing in question to a genuine writing
  107. self-authenticating documents:
    • certified copies of public records
    • newspapers or periodicals
    • records of regularly conducted business activity certified by a custodian of the records
  108. Best Evidence Rule only applies when the contents of a writing, photo, x ray or video are at issue or if a wintess is relying on these media while testifying. The writing must not be for an immaterial matter and must have a legal effect (e.g. will or contract) OR be used as proof of an event, OR wintess testifying absed on the facts learned in the writing
  109. BER: a duplicate may be introduced if produced accurately but NOT if there is a genuine question of its authenticy arises or it is partial copy
  110. BER: original not required if
    • all originals lost or destroyed
    • original could not be obtained
    • party against whom it is being offered is in control of it and fails to produce it OR
    • collateral matter
  111. BER: public records must be certified or have testimony by someone who saw the original or other means by court to prove the issue
  112. BER: can bypass if party against whom it is being offered admits to the document
  113. court determines whether BER applies, jury decides if a writing or recording ever existed, which one is an original, and if other evidence correctly reflects the content
  114. Parol evidence rule: assumes that a written K represents the complete agreement
  115. privilege: If communication overheard by an unwanted third party, privilege is destroued UNLESS third party was an eavesdropper or that party's presence is necessary (e.g. translator)
  116. holder may waive privilege if it fails to timely assert it, voluntariy discloses it, or there is a contractual waiver
  117. spousal immunity: general RULE
    the spouse of a criminal defendant may not be called as a witness by the prosecution
  118. spousal immunity: in federal court and majority of states, the witness' spouse holds the privlege and may choose to testify
  119. in a minority of states, the party's spouse holds the privilege and may prevent the spouse from testifying, even if witness spouse wants to testify
  120. spousal immunity applies to testimony about events occurring before and during the marriage and can only be asserted during the marriage
  121. confidential marital communication= communication made between spouses while married and both spouses hold it.. IT is privileged if the communication was made in reliance on the sanctity of marriage
  122. confidential marital communication extends beyond end of the marriage
  123. attorney-client privilege: communication intended to be confidential that is for legal advice or representaiton is privileged. If a third party present, generally destroys the privilege.
  124. attorney-client: not privileged:
    - fee arrangement
    - indentity of client
    - underlying facts
    - statement made to an atty who is acting in another capacity
  125. atty/client- only client can waive privilege. Atty must assert the privilege and it survives the client's own death.
  126. atty-client privilege does not exist for future crimes, disputes b/w attorney and client, two parties who claim the same deceased client, or communications between co-clients who are now adverse
  127. attorney documents are not privileged via atty/client
  128. physician-patient privilege protected if communication is for medical treatment. Patient holds the privilege
  129. physician-patient privilege does not exist when:
    1) information was acquired for reasons other than treatment
    2) patient's physical condition is at issue in the case
    3) communication was made as part of the commission of a crime
    4) dispute b/w physician and the patient
    5) patient contractually agrees to waive the privilege
    6) a case is brought in federal court and state law does not apply
  130. psychotherapist-patient privilege does NOT exist if patient's mental condition is at issue, the communication was the result of a court ordered exam, or a case is a commitment proceeding against tje patient.
  131. a witness may refuse to give testimony that may tend to incriminate him under 5th amendment protection
  132. 5 Amend privilege does not apply to:

    - prior statemetns (only current ones)
    - physical characteristics or mannerisms
    - corporations or other organizaitons
  133. 5th amed privilege: a prosecutor may not comment on D's failure to take the stand in a criminal case, but a in a civil case opposing counsel MAY comment on D's failure to testify
  134. a witness may be compelled to provide incriminating testimony if the gov't grants him immunity from prosecution
  135. immunity is either transaction (protects entire transaction) or use (protects only the compelled statements)
  136. a witness may lose the right to invoke 5th amendment privilege if the danger of incrimination has been removed through acquittal or conviction of the underlying charge
  137. confidential communication made to a member of the clergy is privileged
  138. no accountant-client privilege at common law, but may be recognized by certain jurisdictions
  139. may not admit evidence of subsequent remedial measures.
  140. offers, conduct or statements not admissible to prove a disputed claim, an amount or for impeachment UNLESS there is a later criminal case (and thus negotiations with gov't agencies admissible) or to prove bias, prejudice of a witness, obstruction, or to negate a claim of delay.
  141. evidence discussed in a negotiation is not protected.
  142. if there are multiple parties and one settles, the agreement is not admissible
  143. offers to pay medical expenses are inadmissble to prove liability for P's injuries
  144. any conduct or statements that accompany the payment or the offer to pay are admissable
  145. pleas: GENERALLY not admissable:
    -withdrawn guilty pleases
    - plea of nolo contendere
    - statements made while negotiating with a DA
    - statements made during please proceedings
  146. pleas MAY be admissible IF fairness dictates, if in perjury hearings, or if D makes a knowing and voluntary waiver
  147. evidence of insurance or lack of insurance is inadmissible to prove or disprove negligence of wrongful conduct. BUT it is admissible if it evidence agency, ownership, control, or witness bias and prejudice
  148. in criminal cases, a victim's sexual behavior or predisposition is generally not admissible UNLESS used to prove source of semen or source injury, used to prove victim's consent, if offered by the prosecution, or the exlcusion would violate 6th amendment rights of defendant
  149. opinion or reputaiton evidence NOT admissible to for victim's sexual conduct
  150. in civil cases, reputation of victim's sexual behavior only admissible if victim places it in controversy and only if probative value substantially outweighs any unfair prejudice
  151. in a criminal case, evidence of D's other sexual assault is admissible when D is accused of committing sexual assault, rape, or child molestation. Includes arrests and unreported incidents and no time restriction
  152. hearsay= an out of court statement that is offered to prove the truth of the matter asserted
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2015-01-15 04:20:35
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