Card Set Information
gordon factors (FRE 609)
1. impeachment value of prior crime
2. recency/remoteness of prior offense
3. extent/nature of the overall record
4. similarity b/t past crime and charged offense
5. importance of defendent's testimony
6. centrality of the credibility issue
FRE 609 Analysis
1. who is the witness?
2. what was the punishment for the offense?
3. did offense involve dishonesty or false statements?
4. when was the conviction or release from confinement?
5. what balancing test, if any, applies?
types of inconsistency
1. direct inconsistency
2. prior silence or less detailed prior statement
3. prior claim of lack of memory
4. current claim of lack of memory
5. omissions of details previously related
extrinsic evidence is substantively admissible if 3 conditions are met (FRE 801(d)(1)(A))
1. D testifies at trial/hearing
2. D is subject to cross concerning the statement
3. inconsistent statement was made under oath subject to penalty of perjury at a trial, hearing, other proceeding, or deposition
extrinsic evidence permissible to impeach:
1. when the evidence is relevant to a material issue in the case
2. to prove the W bias toward one of the litigants
3. to rebut factual assertions made by W on direct
4. to cure a W misleading statement as to the extent of his troubles with the law
1. What is the evidence?
2. Is it offered to support the credibility of a W?
- If so, has credibility been attacked?
3. Is it offered to impeach the credibility of W?
- if so determine the method of impeachment and ask if it is relevant and admissible under the rule governing this method
summary chart factors
1. length of trial
2. complexity of the case
3. number of exhibits and W
leading question close case factors
1. context in which the question is asked
2. tone of voice employed
3. body language/conduct of L
3 instances when leading questions are permissible on direct
1. when W is unable to convey the info meaningfully in response to non-leading questions
2. when questions relate to preliminary or other undisputed matters
3. when the W is an adverse party, identified with an adverse party, or is hostile to the calling party
subsequent remedial measures are admissible when offered to show/prove
3. ownership or control
4. to rebut a defensive theory based on the condition of the accident scene
5. where the D has destroyed the relevant object, allegedly as a remedial measure
FRE 408 analysis - compromise and offers to compromise
1. is there a claim?
2. was the claim disputed as to validity or amount?
3. what is the evidence offered to prove?
4. statement or conduct?
5. made in compromise negotiations?
FRE 410 does not protect:
1. statements to police
2. statements made after plea has been finalized
3. statement made w/o intent to negotiate a plea
4. statements made during negotiations that result in final plea of guilty
character evidence analysis
1. what is the item of evidence?
a) opinion as to character trait?
b) reputation of character trait?
c) specific acts?
2. what is it offered to prove?
a) essential element of the charge, claim or defense?
b) propensity to behave in a certain way?
c) non-propensity use?
3. is it relevant for that purpose?
4. if offered to prove conforming conduct, is it:
a) character of the accused offered by accused?
b) character of the victim offered by the accused?
c) character of truthfulness of witness?
5. If it isn't character evidence, is it:
a) evidence of other crimes, wrongs or acts offered to prove a fact other than character?
b) evidence of a habit?
c) evidence of similar events?
FRE 403 balancing test regarding 404(b)
1. strength of the evidence of other crime
2. need for the evidence
3. proximity in time of the other crime
4. degree of similarity of the other crime
5. efficacy of the limiting instruction
5 step inquiry for determining admissibility of uncharged misconduct evidence
1. offered for proper purpose
2. relevant to prove FRE 404(b) fact in question
3. PV not << PE
4. can jury understand and follow the limiting instruction
5. has the proponent offered ESSF by jury by PoE the "bad act" did occur and D was involved?
habit v. non-habit factors
1. frequency of the given behavior
2. regularity of the behavior
safeguards to minimize testimonial infirmities
1. is there a statement?
2. who is the declarant?
3. where was the statement made?
4. why is it offered (to prove TOMA or some other purpose)?
5. even if it is hearsay, is there an exception or exemption that applies?
elements of hearsay
2. of the declarant
3. made other than while testifying at the trial or hearing
4. offered to prove the TOMA
1. which party is offering the statement?
2. how is the statement relevant to that party's case?
utterances and conduct which are not hearsay
1. words of indpt legal significance or "verbal acts"
2. value of the evidence derives from the fact that the words were spoken, not from the TOMA
3. offered to show their effect on the listener
4. circumstantial evidence of the D's then existing state of mind
5. words/conduct aren't assertive or are assertive of something other than what they are offered to prove
elements of co-conspirator statements
1. conspiracy existed
2. D was member of the conspiracy
3. person against whom the statement is offered was a member of the conspiracy
4. statement made during pendancy of conspiracy
5. statement furthered the goals of the conspiracy
prior witness statement requirements (801(d)(1))
1. D must testify
2. D must be subject to cross concerning the prior statement
prior inconsistent statement requirements (801(d)(1)(A))
1. statement inconsistent with W testimony at trial
2. statement given under oath at a trial, hearing, other proceeding, or deposition
prior consistent statement requirements (801(d)(1)(B)
1. statement consistent with W testimony at trial
2. offered to rebut an express or implied charge of recent fabrication or improper influence/motive
3. statement made before the alleged fabrication or improper motive/influence arose
statements of prior ID requirements (801(d)(1)(C))
1. D must testify
2. D must be subject to cross concerning the statement
3. statement must be one of identification of a person made after perceiving the person
present sense impression elements (803(1))
1. event/condition must have occurred
2. statement must describe that event/condition
3. D made the statement while perceiving the event/condition or immediately thereafter
Excited Utterance requirements (803(2))
1. startling event or condition
2. statement relates to that event/condition
3. D was under stress of excitement caused by event/condition when made the statement
time period of stress factors for excited utterance
1. lapse of time b/t event and declaration
2. age of the D
3. physical and mental state of D
4. characteristics of the event
5. subject matter of the statements
4 categories of statement covered by 803(3)
1. statements of present bodily condition
2. statements of present state of mind/emotion offered to prove a state of mind/emotion of D that is in issue in the case
3. statements of then present state of mind offered to prove subsequent conduct of D in accordance with the state of mind
4. state of mind statements of testators
1. must be a statement of D's condition
2. conduct sought to be proven by the statement must be relevant
803(4) foundation - medical diagnosis and treatment
1. made for purposes of medical diagnosis or treatment
2. describing medical history, past or present symptoms, pain, sensation, cause, or source
3. reasonably pertinent to diagnosis or treatment
recorded recollection requirements - 803(5)
1. W had knowledge in the past
2. present knowledge is insufficient to permit the W to testify accurately and fully
3. memo/record made or adopted while the matter was fresh in W memory
4. memo/record accurately reflects the W prior knowledge
records of regularly conducted activity foundation - 803(6)
1. memo, record, report, or data compilation
2. of acts, events, conditions, opinions, or diagnoses
3. made at or near the time of events recorded
4. by or from a person with knowledge
laying the foundation for records of regularly conducted activity - 803(6)
- qualified witness
- certification IAW FRE 902(11), 902(12), or other statute
when D is unavailable - 804(a)
1 claim of privilege
2. refusal to testify
3. lack of memory
4. death or physical/mental infirmity
5. absent and unable to locate
physical/mental infirmity issues - 804(a)(4)
1. how important is the testimony?
2. how long will the D be unavailable?
3. are there ways to get the testimony short of calling the W to the courthouse?
judge has wide discretion
formal testimony foundational requirements - 804(b)(1)
1. unavailable under 804(a)
2. D must have testified as W at another trial, hearing, other proceeding, or deposition
3. criminal case?
a) opportunity to develop testimony by direct, cross, or redirect; AND
b) same or similar motive
c) by same party against whom offered
4. civil case?
b) same or similar motive
c) by party against whom offered or its predecessor in interest
dying declaration foundation - 804(b)(2)
1. D unavailable under 804(a)
2. case is civil action or homicide prosecution
3. statement made while D believed death was imminent
4. statement must concern the cause or circumstances of what D believed was impending death
statement against interest factors - 804(b)(3)
1. timing of the statement and relationship b/t D and accused
2. whether statement was made voluntarily after miranda warnings
3. whether there is evidence that the statement was made in order to curry favor with authorities
4. any apparent motive for the OoC D to misrepresent the matter
5. general character of the speaker
6. whether other ppl heard the OoC statement
7. whether statement was made spontaneously
8. availability of D as W
statement against interest foundation - 804(b)(3)
1. D unavailable pursuant to 804(a)
2. when the statement made:
a) was contrary to D pecuniary interest?
b) was contrary to D proprietary interest?
c) rendered a claim D had against another invalid?
d) subjected D to criminal or civil liability?
3. under circumstances a RPP wouldn't have made the statement w/o believing it was true
forfeiture of wrongdoing foundation - 804(b)(6)
1. a statement
2. D must be unavailable
3. party against whom statement is offered engaged or acqueisced in conduct that was wrongful
4. wrongful conduct was intended to and did procure D unavailability
preponderance standard applies
need not be criminal
factors bearing upon circumstantial evidence of trustworthiness (807)
1. whether statement was made under oath
2. whether it concerned matters w/in the D PK
3. whether the D recanted the statement
4. whether there is evidence that D is unreliable
5. whether other evidence seriously undermines the content of the statement
residual exception requirements - 807
3. probative value
4. interests of justice
hearsay analysis in criminal cases
1. is the statement hearsay?
- if not, admit
2. if so, is there an exception?
- if no, exclude
3. if so, is the statement testimonial?
- if not, admit
4. if so, is the D subject to cross at trial?
- if so, admit
5. if not, is there an exemption or exception?
- if so, admit
6. if not, did the accused have an opportunity to cross when the statement was made?
- if so, admit
- if not, exclude
nontestimonial statement (davis)
1. made in the course of police investigation
2. primary purpose of interrogation to enable police assistance to meet ongoing emergency
testimonal statement (davis)
1. no ongoing emergency
2. primary purpose of interrogation is to establish/prove past events
3. those events potentially relevant to later criminal prosecution
CC and Crawford v. Washington --> testimonal hearsay offered against criminal D is admissible if:
1. the declarant testifies at trial
1. declarant is unavailable
2. D had prior opportunity to cross examine the declarant
if statement is testimonial, the CC excludes it UNLESS:
1. offered for a non-hearsay purpose
2. statement isn't hearsay under 801(d)(2)
3. FRE 804(b)(2) or (6) applies
4. D also testifies at trial
5. D is unavailable and defendant had prior opportunity to cross examine D when statement was made
effect of erroneous rulings elements - 103(a)
2. affecting a substantial right of the party
3. timely objection or offer of proof
effect of erroneous rulings factors - 103(a)
1. whether erroneously admitted evidence was primary evidence relied on
2. whether aggreived party was nonetheless able to present the substance of its claim
3. existence and usefulness of curative jury instructions
4. extent of jury argument based on tainted evidence
5. whether erroneously admitted evidence was merely cumulative
6. whether other evidence was overwhelming
plain error elements - 103(d)
1. an error
2. clear and obvious under current law
3. affects the defendant's substantial rights
4. would seriously affect the fairness, integrity, or public reputation of judicial proceedings if left uncorrected
3 step process for appeal of evidence issues
1. party must perserve the issue for appeal
2. party must pursuade the appellate court that the trial court committed an error in the admission or exclusion of evidence
3. party must convince the court that the error substantially affected a right of that party
Lack of Personal Knowledge elements - 602
personal knowledge inquiry - 602
1. personal knowledge as to what?
2. relevance of that "what" to the case?
3. excluded by any other rules?
authentication/identification analysis - 901
1. what does the proponent claim the evidence to be?
2. is it relevant to the issue in question?
3. what foundation is necessary?
4. who would you call to lay the foundation?
5. what questions would you ask?
FRE 1002 Requirement of Original only applies when:
1. a writing is itself the thing to be proved OR
2. a party seeks to prove a matter by using a W as evidence of it
scope of BER limited in 2 ways
1. doesn't apply to evidence about tangible items other than writings, recordings, and photos
2. doesn't apply to all evidence concerning writings, recordings, and photos...just to that evidence offered to prove the content of these
admissibility of other evidence of contents permitted when (FRE 1004)
1. original is lost or destroyed
2. original not obtainable
3. original in possession of opponent
4. collateral matters
3 factors for determining collateralness (FRE 1004(4))
1. centrality of the writing to the principal issues of the litigation
2. complexity of the relevant features of the writings
3. existence of a genuine dispute as to the contents of the writing
judicial notice "kinds of fact" test - FRE 201(b)
2. fact is generally known or verifable
getting facts to the jury
2. real evidence
3. demonstrative evidence
4. demeanor evidence
6. judicial notice
relevance requirements - 401
1. evidence must be probative of the proposition it is offered to prove; AND
2. proposition to be proved must be one that is of consequence to the determination of the action
general principles of relevance
1. relational concept
2. can't be regulated in detail
3. turns on logic, NOT emotion
4. tied up with the problem of evaluating circumstantial evidence
5. relevant doesn't mean admissible
6. relevance not destroyed by lack of disputed facts
articulating relevancy...tell the court
1. the item of evidence or testimony offered
2. fact, issue, or conclusion this proof seeks to establish
3. why that fact is of consequence to this action
4. how the offered proof has any tendency to establish that fact
1. what is the item of evidence?
2. what is the fact of consequence?
3. how does that evidence have any tendency to prove the fact of consequence?