What do the federal rules of evidence NOT apply to?

1. The Court's determination of a preliminary question of fact governing admissibility
2. Grand Jury Proceedings
3. Criminal Proceedings for the following purposes:

• issuing an arrest warrant
• preliminary examination of case
• extradition or rendition
• Bail consideration
• Sentencing; and
• Granting or revoking probation or supervised release

In a jury, who is the trier of fact, and who is the trier of law?

Jury = fact

Judge = law

What preliminary questions does a judge generally decide?

1. Competency of Evidence
2. admissibility of evidence
3. whether privilege exists
4. whether a person is a qualified witness

When must preliminary matters be heard outside the presence of the jury?

When a hearing involves the admissibility of confessions

when a D, in a criminal case is a witness, and requests

or when justice requires

RE: Objection to the admission of evidence.

What must a party do in order to preserve the admissibility issue for appeal?

The ruling admits evidence, a party must make a timely objection or motion to strike and must usually state the specific ground for the objection or motion in order to preserve the admissibility issue for appeal.

RE: Offer of proof for exclusion of evidence

What must a party do in order to preserve the evidence for appellate review?

If the ruling excludes evidence, a party must make an offer of proof.

Offer of Proof: oral or written explanation of the relevance and admissibility of the evidence made on the record.

What is a plain error?

What effect does a plain error have on a substantial right?

One that is obvious to a reviewing court.

Plain error on a substantial right is grounds for reversal, even if no objection or offer of proof was made. 

What is the rule of completeness?

When part of a writing or recorded statement is introduced, an adverse party may compel the introduction of omitted portions if, in fairness, it should be considered at the same time. 

A witness testifies that an accident happened on a Saturday. The accident report indicates that the accident happened on July 21, 2007. Whether July 21, 2007, was indeed a Saturday is what type of judicially noticed fact?

Adjudicative or Legislative?

Adjudicative

A judge must decide whether to recognize an exception to the common-law marital privilege. The fact that allowing the exception would undermine the sanctity of marriage, is what type of fact?

Adjudicative or Legislative?

Legislative 

RE: Judicially noticed facts

In a civil case MUST the jury be instructed to accept the noticed fact as conclusive?

YES

RE: Judicially noticed facts

In a criminal case MUST the jury be instructed to accept the noticed fact as conclusive?

No, the jury MUST be instructed that is MAY OR MAY NOT accept any judicially noticed fact as conclusive.

What is a leading question?

When are they permitted?

A question that suggests the answer within the question.

when necessary to elicit preliminary background information not in dispute

difficult witnesses

always on cross-examination

What are other improper question types (not leading)?

• Compound 
• Assuming facts not in evidence
• Argumentative
• Calls for a conclusion or opinion
• Repetitive

What two distinct burdens are comprised in the burden of proof?

Production & Persuasion 

What are the burdens of persuasion?

Civil & Criminal

Civil: preponderance of evidence or (higher standard) clear and convincing evidence

Criminal: beyond a reasonable doubt

What are Presumptions?

A presumption is a conclusion that the trier of fact is required to draw upon a party's proof of an underlying fact or set of facts.

What effect does a rebuttable presumption have?

Shifts the burden of production (NOT persuasion), to the opposing party.

**Bursting Bubble Approach

RE: Rebuttable Presumption - what is the bursting bubble approach?

Used by the Federal Rules in a civil case, a presumption "bursts" (i.e. no longer has a preclusive effect) after the introduction of sufficient evidence by the opposing party to sustain a contrary finding.

If NO contrary evidence = judge must instruct the jury to accept the presumption

If contrary evidence = the burden of persuasion remains on the party who had it originally. Presumption no longer has a preclusive effect. Judge may instruct the jury that it MAY, draw the conclusion (e.g., a person is dead) from basic facts (e.g., the person has been missing for 7 years).

Bursting Bubble DOES NOT APPLY: when a federal statute or another FRE provides otherwise.

How does the court treat conclusive (or irrebuttable) presumptions?

As rules of substantive law and may not be challenged by contrary evidence, not matter how strong the proof.

Example: Presumption, in some states, that a child under the age of four lacks the ability to form the intent necessary to commit an intentional tort; no evidence to the contrary is permitted to disprove this assumption.

Presumptions: Diversity Cases: Does the federal court apply federal rules to determine the resolution of evidentiary issues?

Yes generally, however, when state substantive law is determinative of the existence of claim or defense under Erie, then state law, not Federal rules, governs the effect of a presumption related to the claim or defense.

What is the relevant evidence rule?

Evidence must be relevant to be admissible, and all relevant evidence is admissible unless excluded by a specific rule, law, or constitutional provision.

When is evidence relevant?

i. if it has a tendency to make a fact more or less probable than it would be without the evidence (i.e. probative)

ii. the fact is of consequence in determining the action (i.e. material)

When is relevant evidence excluded?

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,
• wasting time, or
• needlessly presenting cumulative evidence.

In a civil case, is evidence of a person's character (or character trait) admissible to prove that the person acted in accordance with that character (or character trait) on particular occasion?

Generally, NO

When in a civil case, is the D's sexual past misconduct admissible?

Past sexual assault or child molestation by a D in a case in which the claim for relief is based on the D's sexual misconduct is admissible

Character evidence is admissible in cases where character is an essential element of a claim or defense, rather than a means of providing a person's conduct, what types of cases are these?

Defamation: character of the P

Negligent Hiring or Negligence Entrustment: character of the person hired or entrust

Child-Custody cases: character of the parent or guradian.

IN a criminal case, is the prosecution allowed to introduce evidence of the D's bad character to prove that the D has a propensity to commit crimes and therefore is likely to have committed the crime in question?

NO

Can a D introduce evidence of his good character as being inconsistent with the type of crime charged?

YES, must pertain to the crime charged

Reputation or opinion evidence only

For what purposes are Defendant's crimes or other wrongful acts admissible?

MIMIC

Motive

Intent

Mistake (abscence of)

Identity

Common Plain

Is evidence of a person's habit or an organization's routine admissible to prove that the person or organization acted in accordance with the habit or routine on a particular occasion?

YES

What do non-expert witnesses need to have in order to testify on a matter?

Personal Knowledge of the matter

After a trial, during an inquiry into the validity of the verdict, what is a juror prohibited from testifying about?

i. Any statement made or incident that occurred during the course of the jury's deliberations (refusal to apply court instructions)

ii. the effect of anything upon that juror's, or any other juror's, vote; or

iii.any juror's mental processes concerning the verdict.

After a trial, during an inquiry into the validity of the verdict, what is a juror allowed to testify on?

i. Extraneous prejudicial information brought to jury's attention (newspaper article not in evidence about trial and D's guilt)

ii. an outside influence improperly brought to bear on a juror (threat of juror's life or spouse's life)

iii. Mistake was made in entering the verdict on the verdict form

What are Dead Man's Statutes?

At common law, a party with a financial interest in the outcome could not testify in a civil case about a communication or transaction with a person whose estate was party to the case and the testimony was adverse to the estate, unless there was a waiver.

NOT in FRE, but most states have it.

Who can impeach a witness?

Are specific instances of conduct admissible to attack a Witness's character for truthfulness?

Generally, no (e.g. lying on a job application)

However, on cross-examination, a witness may be asked about specific instances of conduct if it is probative of the truthfulness or untruthfulness of:

i. the witness or

ii. another witness about whose character the witness being cross-examined has testified.

On cross-examination, if the witness denies specific instances of conduct, is extrinsic evidence admissible to prove that instance in order to attack of support the witness's character for truthfulness?

NO

This also bars references to any consequences that a witness may have suffered because of the conduct 

(e.g.,suspension from governmental job for improper use of gov't property).

Can a witness's character for truthfulness be impeached with evidence that the witness has been convicted of a crime?

Yes, subject to limitations

What are the limitations for using evidence to impeach a witness for a criminal conviction (re: crimes involving dishonesty)?

Subject to a 10-year restriction, any witness may be impeached with evidence that he has been convicted of any crime -- felony or misdemeanor -- involving dishonesty or false statement, regardless of the punishment imposed or the prejudicial effect of the evidence.

Perjury - Fraud - embezzlement - false pretenses

What are the limitations for using evidence to impeach a witness for a criminal conviction (re: crimes NOT involving dishonesty)?

What is the 10 year conviction restriction?

If more than 10 years have elapsed since the conviction (or relase from confinement, whichever is later), then evidence of the conviction is ONLY admissible if:

i. probative value of the conviction, substantially outweighs its prejudicial effect; and

ii. proponent gives adverse party written notice of the intent to use the evidence, enough time for adverse party to contest the use.

When is evidence of a witness's conviction not admissible?

Pardoned, annulment, other action based on a finding of innocence.

When can evidence of a juvenile adjudication be admitted to impeach the witness's character for truthfulness?

ONLY IF:

i. it is offered in a criminal case;

ii. An adult's conviction for that offense would be admissible to attack the adult's credibility; and

iii. Admitting the evidence is necessary to fairly determine guilt or innocence.

* also can be used under the 6th Amendment Confrontation Clause to show bias.

When can extrinsic evidence of a witness's prior inconsistent statement be introduced?

Only if the witness is given the opportunity to explain or deny the statement, and the opposing party is given the opportunity to examine the witness about it.

The witness's opportunity to explain or deny the statement need not take place before the statement is admitted into evidence.

RE: extrinsic evidence of a witness's prior inconsistent statement, when does the exception of the opportunity to explain NOT apply?

When impeaching a hearsay declarant

Qualifies as an opposing party statement.

How can a witness be rehabilitated?

i. Explanation or clarification on redirect examination;

ii. Reputation or opinion evidence of his character for truthfulness, if the witness's character was attacked on that ground under FRE 608(a); or

iii. A prior consistent statement offered to rebut an express or implied charge that the witness lied due to improper motive or influence.

What is the difference between refreshed recollection and past recollection recorded?

Refreshing Witness's Present Recollection: generally not admitted into evidence

Recorded Recollection: may be admitted because it is a hearsay exception.

When are lay (non-expert) witness opinions admissible with respect to common-sense impressions?

Appearance

Intoxication

Speed of Vehicle

Someone's emotions

To be admissible the opinion must be:

i. Rationally based on the perception of the witness; and 

ii. Helpful to a clear understanding of the witness's testimony or the determination of a fact in issue.

When can an expert witness testify as to her opinion?

i. Witness is qualified as an expert

ii. The testimony is based on sufficient facts or data.

iii. Product of reliable principles and methods

iv. The Witness applied the principles and methods reliably to the facts of the case.

How can tangible evidence be verified?

Physical objects

personal knowledge

testimony of distinctive characteristics

chain of custody

reproductions and explanatory evidence

x-ray images and electrocardiograms

How can tangible evidence be verified?

Ancient Documents

i. 20 years old

ii. in a condition unlikely to create suspicion as to its authenticity

iii. found in a place where it would likely be if it were authentic.

What are self-authenticating documents?

i. public documents bearing a governmental seal and a signature of an authorized governmental official or that are not sealed but are signed by an authorized governmental official and certified by another authorized governmental official;

ii. Certified copies of public records

iii. Official publications issued by a public authority;

iv. Newspapers and periodicals;

v. Trade inspections (labels affixed in the course of business that indicates ownership)

vi. Notarized documents

vii. Commercial paper

viii. Any documents, signature, or other item declared by federal statute to be authentic; and 

ix. Records of a regularly conducted activity (e.g., a business) certified by a custodian of the records.

How can a telephone conversation be authenticated?

i. caller recognized the speaker's voice;

ii. the speaker knew the facts that only a particular person would know;

iii. the caller dialed a number believed to be te speaker's, and the speaker identified himself upon answering; or

iv. The caller dialed a business and spoke to the person who answered about business regularly conducted over the phone.

What does the best evidence rule require?

That the original document (or reliable duplicate) be produced in order to prove the contents of a writing, recording, or photograph, including electronic documents, x-rays, and videos.

** Does not require a party to present the most persuasive evidence, or documents instead of testimony.

When is a duplicated document, not admissible to the same extent as an original?

i. genuine question as to the authenticity of the original; or

ii. the circumstances make it unfair to admit the duplicate, such as may be the case when only part of the original is duplicated.

If an original is unavailable, when it other evidence of its contents admissible?

i. all of the originals are lost or destroyed, and not by the proponent acting in bad faith;

ii. The original cannot be obtained by any available judicial process;

iii. The party againstwhom the original would be offered (a) had control of the original, (b) was at the that time put on notice that the original would be the subject of proof at the trial or hearing, and (c) failed to produce it at the trial or hearing; or

iv. The writing, recording, or photograph is not closely related to a controlling issue (collateral matter)

What evidence is excluded by the parol evidence rule?

Evidence that, if introduced, would change the terms of a written agreement. 

What is the rule for partially integrated contracts and parole evidence?

A K that contains some, but not all, of the terms to which the parties agreed is a partial integration.

IN this case, extrinsic evidence that adds to the writing may be admitted.

Evidence that contradicts the writing may not be admitted.

When can extrinsic evidence always be admitted (regardless of PER)?

i. to clarify an ambiguity in the terms of the writing;

ii. to prove trade custom or course of dealings;

iii. to show fraud, duress, mistake, or illegal purpose on the part of one of both parties; or

iv. to show that consideration has (or has not) been paid

What is spousal privilege?

2 types

Spousal Immunity: criminal D's spouse cannot be called as a witness by prosecution. Married person cannot be compelled to testify against spouse ever in criminal proceeding.

Confidential Marital Communications: Communications made between spouses while they were married is privileged if the communication was made in reliance on the sanctity of marriage.

Who holds the privilege of spousal immunity?

Federal Court?

State State?

Federal: the witness spouse holds the privilege

State: the party spouse

What period of time applies to spousal immunity?

Testimony about events that occurred before and during the marriage.

Can only be asserted while still married.

what does confidential marital communications apply to?

Communications made during marriage

Applies in both civil and criminal cases.

Both spouses hold this privilege and can assert at any time, even after divorce

In a civil case, when is evidence admissible to prove a victim's sexual behavior or predisposition? 

If its probative value substantially outweighs the danger of harm to any victim and unfair prejudice to any party

Is a statement offered as circumstantial evidence of the declarant's mental state hearsay?

No

What are statements that are considered non-hearsay?

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Oja

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1. Declarant-Witness's Prior Statements

• Prior Inconsistent Statement
• Prior Consistent Statement
• Prior Statement of Identification

2. Opposing Part's statement

• Judicial admission
• Adoptive admission

What are the hearsay exceptions, when the declarant is unavailable as a witness?

Former Testimony

Dying Declaration

Statement against interest

Statement of person or family history

Statement against party that causes declarant's 

unavailability

What are the hearsay exceptions, when it does not matter if the declarant is unavailable?

Present Sense Impression

Excited Utterance

Statement of Mental, Emotional, or Physical Condition

Statement made for Medical Diagnosis or Treatment

Recorded Recollection

Business Records

Public Records

Learned Treatis

Previous Conviction

What are Prior inconsistent statements? When are they NOT hearsay?

A prior inconsistent statement was made under penalty of perjury at a trial hearing, other proceeding, or deposition may be admissible to impeach the declarant's credibility and as substantive evidence. 

What are prior consistent statements used for?

i. rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in testifying

ii. rehabilitate the declarant's credibility as a witness after attacked on another ground. 

What is the difference between non-hearsay opposing party's statement, and hearsay statement against interest?

Opposing party's statement must have been made by a party, the statement need not have been made against the party's interest when it was made.

Statement against interest may be made by a non-party, the declarant must be unavailable, and the statement must have been against the declarant's interest at the time it was made.

Elements for Present Sense Impress, Hearsay exception, Declarant's availability immaterial.

A statement describing or explaining an event of condition that is made while or immediately after the declarant perceived it.

MUST be a description of an event. 

Elements for Excited Utterance, Hearsay exception, Declarant's availability immaterial.

A statement made about a startling event or condition while the declarant is under the stress of excitement that it caused

ONLY needs to relate to an exciting event. 

Elements for Statement of Mental, Emotional, or Physical Condition, Hearsay exception, Declarant's availability immaterial.

A statement of the declarant's then-existing state of mind or emotional, sensory, or physical condition is not excluded as hearsay

a. State of Mind: present intent, motive, or plan can be used to prove conduct in conformity with that state of mind.

b. Physical condition: statement of the declarant's mental feeling, pain, or bodily health made at that time can be used to prove the existence of that condition but not its cause.

Elements for Recorded Recollection, Hearsay exception, Declarant's availability immaterial.

If a witness is unable to testify about a matter for which a record exists, that record is not excluded as hearsay if the following foundation is established:

i. record is on a matter the witness once knew about;

ii. record was made or adopted by witness when the matter was fresh in their mind

iii. record accurately reflects the witness's knowledge; and

iv. the witness states that she cannot recall the event well enough to testify full and accurately, even after consulting record on the stand.

When does the court have to order the exclusion of a witness from the courtroom?

At a party's request, so that the party cannot hear the testimony of the other witnesses, unless an exception applies.

Exception: a person whose presence is essential to the presentation of a party's case, such as the police officer in charge of investigating a criminal case.

IF a witness sustains a major head injury and can no longer remember what they saw, but they testified prior at a grand jury hearing, should that testimony be admitted at a subsequent trial as substantive evidence?

When is grand jury testimony admissible at a subsequent trial?