Evidence

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sfjohnson1010
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73851
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Evidence
Updated:
2012-07-08 13:20:45
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Evidence
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Federal Rules of Evidence
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  1. FRE 103 erroneous ruling
    • Error may not be predicated uppon a ruling which admits or excludes unless:
    • 1) A substantial right of the party is affected
    • 2. There was a timely objection stating the specific ground of objection or in the case of evidence the substance was made known
  2. FRE 601 Witnesses
    every person is competent to be a witness except as otherwise provided (in civil use state laws)
  3. FRE 602 Personal Knowledge
    • A witness may not testify to a matter unless:
    • 1) Evidence is introduced sufficient to support a finding that
    • 2) The witness has personal knowledge of the subject matter (witness's testimony is enough to satisfy this)
  4. FRE 401 relevant evidence
    Evidence having ANY tendency to make the existence of ANY fact that is of consequence to the determination of the action more or less probable than it would be without the evedince (evidence doesnt have to be disputed)
  5. FRE 402 Admissibility
    All relevent evidence is admissible, except as otherwise provided by the COnstitution, an Act of Congress, these rules, or other rules prescirbed by the Supreme Court pursuant to statutory authority. Non relevent evidence is not admissible
  6. FRE 403
    Although relevant, evidence may be excluded if its probabtive value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, considerations of undue delay, waste of time, or needless presentation of cumulative evidence
  7. FRE 104 (a)
    Preliminary questions concerning the qualification of a person to be a witness, existence of privilege, or admissibility of evidence shall be determined by the court (not bound by rules of evidence)
  8. FRE 104(b)
    When relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fullfillment of the condition (Jury ?)
  9. FRE 801(a) Statement
    an oral or written assertion or nonverbal conduct of a person if intended by the person as an assertion
  10. FRE 801 (b) Declarant
    A person who makes a statement
  11. FRE 801 (c)
    • 1) A statement, other and one made while testifying
    • 2) offered in evidence to prove the truth of the matter asserted
  12. FRE 801 (d)(1)
    • 1) declarant testifies at trial
    • 2) subject to cross
    • 3) statement is inconsistent with declarants testimony, consistent with testimony but offered to rubut charge of fabrication or one of identification of person made after perceiving the person
  13. FRE 801(d)(2)(A)
    • 1) statement offered against party
    • 2) is the parties own statement, in either an individual or a representative capacity
  14. FRE 801(d)(2)(B)
    • 1) Statement is offered against a party
    • 2) is the party's own statement
    • 3) which the party has manifested an adoption or belief in its truth
  15. FRE 801(d)(2)(C-D)
    • 1) Statement is offered against a party
    • 2) is the party's own statement
    • 3) Statement by a person authorized by the party to make the statement concerning the subject, or by the party's agent or servant concerning a matter within the scope of agency or employ during employ
  16. FRE 801(d)(2)(E)
    • 1) Statement is offered against a party
    • 2) by a coconspirator of a party during the course of conspiracy
    • 3) in furtherance of the conspiracy
  17. FRE 802
    Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress
  18. FRE 803(1) Present Sense Impression
    • 1) A statement
    • 2) describing or explaining an event or condition
    • 3) while the declarant was perceiving the event or condition, or immediately thereafter
  19. FRE 803(2) Exited Utterance
    • 1) A statement
    • 2) relating to a startling event or condition
    • 3) made while the declarent was under the stress of the excitement caused by the event or condition
  20. FRE 803(3)
    • 1) a statement
    • 2) of declarant's then existing state of mind, emotion, sensation or physical condition
    • NOT INCLUDING a statement of memory or belief to prove the fact rememembered unless it relates to the execution, revocation, identification or terms of declarant's will
  21. FRE 803(4) Statement for medical diagnosis
    • 1) a statement
    • 2) made for purposes of medical diagnosis or treatement
    • 3) describing medical history or past or present symptoms or the inception or general character of the cause or external soource thereof insofar as reasonably pertinent to diagnosis or treat
  22. FRE 803(d)(5) Prior Recollection
    • 1) A memorandum or record
    • 2) concerning a matter about which a witness once had knowledge
    • 3)witness now has insufficient recollection to enable witness to testify fully and accurately
    • 4) shown to have been made or adopted by witness when memory was fresh
    • 5) made to reflect that knowledge
    • May not itself be received as an exhibit unless ofered by an adverse party
  23. FRE 803(6) records of regularly conducted activity
    • 1) A memorandum, report, record or data compilation in any form
    • 2) of acts, events, conditions, opinions or diagnoses
    • 3) made at or near the time by person with knowledge
    • 4) if kept in the course of a regularly conducted business activity, and if it was the regular practice to make that memo
  24. FRE 803 (6) meaning of business
    includes business, institution, association, profession, occupation and calling of every kind, whether or not conducted for profit
  25. FRE 803(7) Absence of entry in records
    evidence that a matter is not included in the records from (803(6)) to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind that was regularly made and preserved
  26. FRE 803(8) Public Records
    • 1) records, reports, statements or data compilations in any form
    • 2) of public offices or agencies
    • 3) setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law, or in civil actions the factual findings resulting from an investigation
  27. FRE 803(10) Absence of a public record
    • 1) to prove the absence of a record or nonoccurence/existence
    • 2) of a matter of which a record was regularly made and preserved by a public office or agency
  28. FRE 804 (a)
    • A Declarent is unvailable when:
    • 1) exempted due to claim of privilige
    • 2) Refuses to testify
    • 3) lack of memory
    • 4) death or disibility
    • 5) beyond supeona power
  29. When are the witness unavailablility exceptions disallowed
    when the unavailability is due to the procurement or wrondoing of the proponent of the statement, for the purpose of preventing the testimony
  30. FRE 804(b)(1)
    • 1) Testimony given at another hearing of the same or a differenet proceeding
    • 2) the party against whome the tesimony is now offered had an opportunity and similar motive to develop testimony by direct, cross, or redirect
  31. FRE 804(b)(2) Dying Declaration
    • 1) in a prosecution for homicide or civil action or proceeding
    • 2) statement made by a declarant
    • 3) declarant believed death was iminent
    • 4) statement concerning the cause or circumstances of the impending death
  32. FRE 804(b)(3) Statement against interest
    • 1) Statement that when made was contrary to declarants proprietary or
    • 2) Pecuniary interest
    • 3) Had so great a tendency to invalidate the declarants claim agaisnt someone else
    • 4) Expose the declarant to civil or criminal liability
  33. FRE 804(b)(6)
    • 1) A statement
    • 2) Offered against a party
    • 3) Who has engaged or acquiesced in wrongdoing
    • 4) That was intended to, and did, procure the unavailability of the declarant as a witness
  34. FRE 807 Residual exception
    • A statement not specifically covered by 803 or 804 is not excluded if the court determines the statement is:
    • 1) offered as evidence of a material fact
    • 2) more probative on the point for which it is offered than any other evidence which can be procured through reasonable efforts
    • 3)the general purposes of these rules and interests of justice will be served by admission
    • (must warn advers party sufficiently in advance of the trial or hearing including particulars and name and address)
  35. Crawford v. Washington
    Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the constitution actually prescribes (confrontation), if they are not testimonial confrontation isnt triggered)
  36. Davis v. Washington (nontestimonial)
    statements are non-testimonial when
    • 1) Made in the course of police interrogation
    • 2) Under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency
  37. Davis v. Washington (testimonial)
    • 1. statements are testimonial when the circumstances objectively indicate that there was no ongoing emergancy
    • 2. the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution
  38. Davis v. Washington (when confrontation clause doesnt exlclude)
    • 1. the statement is offered for a non-hearsay purpose
    • 2. statement is not hearsay under 801(d)(2)
    • 3. FRE 804(b)(2) or(6) applies
    • 4. the declarant also testifies at trial
    • 5. the declarant is unavailable and the defendant had the oppurtunity to cross when the statement was made
  39. Melendez-diaz v. Mass
    a lab report is inadmissible testimonial evidence, must have the technician testify
  40. Hearsay analysis questions in criminal case
    • 1. Was the statement hearsay, if not admit
    • 2. Was there an exception, if not exclude
    • 3. is the statement testimonial, if not admit
    • 4. is the declarant subject to cross, if yes admit
    • 5. is the exception/excemption 804(b)(1), (2) or (6) if yes admit
    • 6. did the accused have oppurtunity to cross when statement was made, if no exclude
  41. Character Evidence
    • 1) Evidence
    • 2) Concerning the propensity of a person to act in a certain manner
    • 3) That makes a general statement about that person and
    • 4) Conveys a moral or ethical judgment
  42. 404(a)(1)
    • character of accused
    • 1) In a criminal case
    • 2) Evidence of a pertinent trait of character
    • 3) Offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under 404(a)(2)
    • 4) Evidence of the same trait of character of the accused is admissible
  43. 404(a)(2)
    • Character of vic.
    • 1) Criminal case
    • 2) Subject to rule 412
    • 3) Evidence of a pertinent trait of character of the alleged victim of the crime
    • 4) Offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor
  44. 404(a)(3)
    evidence of the character of a witness, as provided in 607, 608 and 609
  45. when is character evidence admissible
    • when accused offeres his own character as a defense;
    • the accused offers the crime victims character;
    • to impeach a witness with bad character for truthfulness;
    • character is an essential element of a charge, claim or defense;
    • the defendant is charged with sexual assault or child molestation
  46. 405 (a)
    • when character evidence is admissible, proof may be made by
    • 1) Testimony as to reputation or by testimony in the form of an opinion.
    • Specific instances ok in cross
  47. 405(b)
    in cases in which character or a trait of a person is an essential element of a charge, claim or defense, proof may also be made of specific instances of that persons conduct
  48. 404(b)
    • evidence of other crimes wrongs or acts is not admissible to prove character in order to show action in conformity therewith.
    • It may be admissible for other purposes (motive, opportunity, intent, preperation, plan, knowledge, identity or absence of mistake) provided that upon request the prosecution provided reasonable notice in advance of trial
  49. 406 Habit
    evidence of a habit, whether corroborated or notis relevant to prove conduct of a person in conformity of that habit
  50. 607
    the credibility of a witness may be attacked by any party, including the party calling the witnes
  51. 901(a) Authintication is
    a condition precedent to admisibility and satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims
  52. 901(b)(1)
    testimony that a matter is what it is claimed to be
  53. 901(b)(2)
    nonexpert opinioin as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation
  54. 901(3)
    comparison by the trier of fact or by expert witnesses with specimens which have been authenticated
  55. 901(4)
    appearance, contents, substance, internal patterns or other characteristics, taken in conjunction with circumstances
  56. 901(b)(5)
    identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker
  57. 901(b)(6)
    telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if in the case of a person circumstances, including self-id, show person answering to be the one called
  58. 901(b)(7) public records or reports
    evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept
  59. 901(b)(9) process or system
    evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result
  60. 1001(1) writings and recordings
    consists of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording or other form of data compilation
  61. 1001(2) photographs
    include still photographs, x-ray film, video tapes, and motion pictures
  62. 1001(3) original writing
    is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it
  63. 1001(3)
    any negative or any print therefrom is a original photograph
  64. 1001(3)
    if data stored in a computer or similar device, then any printout or other output readable by sight, shown to reflect the data accurately
  65. 1001(4)
    is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography including enlargements and minatures, or by mechanical or electronic re-recording, or chemical reproduction or by other equivalent techniques which accurately reproduces the original
  66. 1002
    to prove the content of a writing, recording, or photograph the original is required except as otherwise provided in these rules or by Act of Congress
  67. 1003
    • a dublicate is admissible to the same extent as an original unless:
    • 1. a genuine question is raised as to authenticity of the original or
    • 2. in the circumstances it would be unfair to admit the duplicate in lieu of the original
  68. 1004(1)
    an original is not required if all originals are lost or have been destroyed, unless proponent lost or destroyed them in bad fait
  69. 1004(2)
    an original is not required if no original can be obtained by any available judicial process or procedure
  70. 1004(3)
    • an original is not required if at a time when an original was under the control of the the party against whom offered the party was
    • 1. put on notice by pleadings or otherwise that the contents would be a subject of proof at the hearing
    • 2. that party does not produce the original
  71. 1004(4)
    an original is not required if the writing, recording, or photograph is not closely related to a controlling issue
  72. FRE 407
    • 1. After injury or harm
    • 2. Measures are taken that would have made harm less likely
    • 3. evidence of measures not admissible to prove Negligence, Culpable conduct, Defect, or need for warning/instruction
  73. 407 can be offered to show
    ownership, control, feasibility of precautionary measures, IF CONTROVERTED or impeachment
  74. FRE 408
    • not admissible against defendent
    • 1. withdrawn guilty plea
    • 2. nolo
    • 3. statemnts made in course of any rule 11
    • 4. plea discusions with prosecuting attorney
  75. 609
    • Generally evidence witness convicted of crime admited if:
    • 1. Crime was punishable by death or imprisonment >1 yr
    • 2. elements of the crime required proof or admision of an act of dishonesty or false statement by witness
  76. FRE 609 Defendant testifying
    evidence that accused was convicted of crime admited if court determins provative value > prejuditial value
  77. Impeachment by evidence of conviction
    time limit
    • period of 10 yars since date of conviction or release from confinement, whichever is later
    • can use older than 10 but notice of intent to use must be given to advers party

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