7200954
Description
Flashcards by Abbi Van Hook, updated more than 1 year ago
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Created by Abbi Van Hook
almost 8 years ago
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| Question | Answer |
| According to Rule 101, FRE is applicable to what courts? | US courts. |
| TRUE or FALSE: Under Rule 1101, FRE applies to most court procedures (crim, civil, tax), including pre-trail and priliminary determinations. | FALSE: While FRE does apply to most courts (crim, civil, and tax), it only applies to the MAIN TRAIL. However, privilege applies at all stages. |
| What does FRE 103 address? | This rule addresses what preserves a claim of error. This requires an error that substantially affects the right of a party and a timely objection and offer of proof, unless apparent. However, a plain error can always be observed by the court. |
| Under FRE 105, the judge can give what kind of instructions? | Limiting. On timely request, the court must give limiting instructions to limit evidence to proper scope. |
| What is FRE 401? | Relevancy Definition: Ev. is relevant if it has any tendency to make a fact more or less probable than it would be without the ev. AND fact is of consequence in determining action. |
| What are four things that are important tot remember in regards to relevance under 401? | 1. Facts can be relevant even if they were condeded/stipulated by opp party 2. Facts can become relevent if other party "opens door" to rebuttal 3. Negative evidence is usually not allowed unless it has the tendency to make more/less probable 4. Storytelling funciton may admit some ev. to complete the story |
| What does FRE 402 say about the admissibility of ev? | All relevant (see 401) ev is admissible unless osme other ruels specifically prohibits it, i.e. Const, statute, FRE, SCOTUS... |
| TRUE or FALSE: FRE 403 does not give judges discretion to exclude evidence. | FALSE: the court may exclude relevant evidence if the probative value is substantially outweighed by danger of unfair prejudice. |
| Under FRE 403, what are some of the things to consider when determinign the probative value v. unfair prejudice? | If it confuses issues/misleads the jury or causes undue delay. 403 serves as the final gatekeeper that counteracts the low threshold found in 401 and 402. Consider: 1, if it arouses emotions, 2, if jury will overvalue, 3, how related it is to essential case elements, 4, if the same facts can be proven another way, 5, if there is a possibility to reduce the amount of prejudice once admitted. |
| What does FRE 104 deal with? | Preliminary questions. |
| What does FRE 104.A state? | The court decides preliminary quesitons about witness qualifications, privilege, admissibility via any evidence (only bound by privilege). Essentially, the judge decides quesitons of law/policy through the standard of perponderance fo ev. |
| What does FRE 104.B do? | If ev. relevance depends on whether a fact exists, proof must be sufficient to support a finding that fact exists. ASK: could rational jury find that it exists? In this rule, the judge has a screening function, but does not resolve the factual issue. |
| Rule 601 sets what standard for a witness? | Witnesses must be competent. Every perso is considered competent unless rules state otherwise. NOTE: In a civil case, competency is governed by state law if it is a state law claim. |
| TRUE or FALSE: Presiding judge cannot testify as witness at trial. | TRUE: This is under FRE 605. Parties don't even need to object to preserve this issue. |
| How are jurors limited when it comes to testifying? | Under FRE 606, jurors cannot testify in cases where they are juror. If they are called, the party must have the opportunity to object outside said juror's presence. |
| A witness must be competent, and must also have WHAT under FRE 602? | Personal knowledge. A witness can testify only if ev. is introduced sufficient to support finding that witness has personal knowledge of the matter they are testifying about. This is easy: it can be the witness's own testimony. |
| What testimony is excluded from teh personal knowledge requirement in FRE 602? | Expert testimony. |
| TRUE or FALSE: Under 603, a witness does not need to give oath or affirmation to testify truthfully. | FALSE. Obviously. |
| What does FRE 604 require of interpreters? | Interpreters must be qualified and give oath/affirmation to testify truthfully. |
| What does FRE 611 do? | It gives the court power to exercise reasonable control over the mode/order of witnesses and ev to make procedures effective and efficient and to protect the witness from harassment/embarassment. 611(b): CX can't go beyond scope of direct and witness's credibility. 611(c) leading Qs are allowed durign CX, only as needed to develop testimony for Direct, or for Hostile Witness/Adverse Party. |
| What does FRE 614 allow the court to do? | Under FRE 614, the court can call witnesses on its own or at parties request (each party can CX). The ct. can question witnesses. However, party can object to calling/examing. |
| TRUE or FALSE: FRE 615 addresses teh court excluding witnesses from the courtroom. | TRUE. Under FRE 615, the court must exclude a witness at a party's request, or on its own. However, the court can't' exclude the witness if it is a party, party's rep, the presence is essential, or the person is authorized by statute (i.e. crime victim). |
| What rule guides refreshing a witness's memory with writing? | Rule FRE 612 lets you refresh recollection with anything while testifying or before trial. The adverse party has the right to have the writing produced, inspected, CXed about, introduced parts of it into ev. The court can delete unrelated matters. |
| According to FRE 607, who can attack credibility? | Any party can attack credibility. |
| When using FRE 607, what are the common attacks? | Judge exclusion: unfair prejudice/confusion/delay; exclude through rule. Off.: complete story/rebut ev./clarify ambiguity/intro expert testimony. Defense: show perception/demonstrate inconsisitancy/show bias/attack witness character for truth |
| TRUE or FALSE: Under 610, you can;t use a witness's religious belief to attack credibility. | TRUE. Though, it's not prohibited for other things like motive. |
| What rule does combination of 403 and 611 create? | No extrinsic evidence (non-testimonial) of prior inconsistent statement on purely collateral matter (only use to impeach; no fact value). b/c it would cause delay and confusion. No impeachment with prior consistent statements because would cause confusion and delay. |
| Under 613, what is the procedure for usign prior statements? | A. Must show to adverse party, but doesn't have to show to witness. B. 1) Extrinsic ev. of prior inconsistent statement only admissible when witness has opportunity to explain/deny; 2) Adverse party can examine witness about it or recall; 3) justice requires (always admissible because impeachment). |
| Under FRE 404, what are the general prohibitions for character ev.? | Character ev. is prohibited to show that on particular occasion, the person acted in accordance with character/trait. NOTE: ev. of witness character is admitted under 607, 608, 609. No proof of conduct based on propensity for trait arguments--applies to good and bad traits. |
| FRE 608 is an exception to 404. What does it state? | A witness's credibility can be attacked/suppored by testimony about witness's reputation or opinion regarding witness' character. (no specific acts on direct). Ev. of withness's truthful character is only allowed if the witness's character for truthfulness has been attacked. Extrinsic can't be used. CX about specific acts. |
| What does FRE 609 do? (Hint: this is an exception to 404 and the extrinsic evidence rule in 608) | Civil cases and witness other than criminal D, you can bring in prior felony convictions (punishable by death/imprisonment for 1+ yr) must be admitted. Criminal D: prior felony convictions if probative value outweighs prejudicial effect to that D. Any witness: any conviction for dishonest act/false statement MUST be admitted |
| Under FRE 608, what are the rules regarding convictions more than 10 years ago? | There must be written notice and specific facts showing that the probative value substantially outweighs prejudice. |
| When are convictions not admissible under 609? | Convictions are not admissible if subject to pardon/annulment + there is no later felony; if subject to pardon/annulment based on finding of innocence. |
| What does 609 say about juvenile convictions? | Juvenile convictions are not allowed against criminal D; but allowed in criminal trial if against other witness + if adult, conviction would be allowed to impeach + necessary to include.. |
| TRUE or FALSE: Under 609, all admissible convictions allowed in even if appeal is pending. | TRUE. |
| Define the Rape Shield Law under 412. | If involving alleged SM: no specific sexual act or reputation showing predisposition of victim. - must give 14 days notice |
| Under the Rape Shield Law, what are the three ways that sexual acts or reputation are allowed in criminal cases? | 1. Act shows someone else was source of physical evidence 2. specific sexual act of victim with D to show consent (both parties) OR offered by prosecutor 3. Exclusion would violate constitutional right. |
| Under the Rape Shield Law, what are the two ways sexual acts or reputation are allowed in civil cases? | 1. Victim sex acts/reputation probative value substantilaly outweighs hamr/unfair prejudice to any party 2. Victim reputation only if victim has palced it in controversy/"opened the door" by presenting evidence of own reputation. |
| What rule do 413/414 create regarding similar sexual assault/child molestation cases? | - Can argue propensity inference directly. - In crim cases for SA/CM: ev. can be admitted taht D committed any other SA/CM in any relevant manner. - Still subject to FRE 403 |
| Explain FRE 415. | FRE 415 states that 413/414 (ev. D committed SA/CM) applies to civil cases. |
| What dose FRE 404(a)(2) do in Criminal Cases? | 1. D can offer ev of own pertinent trait can be offered to rebut. 2. D can ovver ev. of victims pertinent trait and prosecutor can rebut or show D has sme trait (subject to 412 Rape Shield). 3. In homicide, when D claims self-D, prosc. can offer ev of victims peacefulness (as soon as 1st aggressor accusation is made). |
| Explain 404(b). | 404(b) expands/repeats 404A stating: ev. is admissible to prove other purpose. In a crim case, you must give notice before trail. |
| In 404B, what are the 9 "other purposes" that ev. will be admissible to prove other purposes? | 1. Motive 2. Opportunity 3. Intent 4. Preparation 5. Common plan 6. Knowledge 7. Identity via signature/strong similarities if disputed 8. absence of mistake/opportunity 9. lack of accident |
| Under FRE 405, what are the methods of proving character when allowed? | If Char. ev is admissible, by testimony aout reputation/opinion about character. CX of character witness, ct. may allow inquiry into relevant specific instances of conduct. When character trais is essential elemment of charge/defense proved by relevant specific instances of conduct. (defamation, child custody, entrapment...) |
| What does FRE 406 say about Habit evidence? | Personal habit or org. routine practice may be admitted to prove they acted in accordance with habit on particular occasion. (positive/negative) NOTE: there is no need for corroboration. Can testify about own habit and can prove via opinion and specific instances. |
| FRE 901 requires what? | That one must authenticate evidence. Must produce evidence to support a finding that item is what the proponent claims it is. |
| Under 901(b), what ways can evidence be authenticated? | B1: testimony of witness w/knowledge B2: handwriting - photoes/videos - voice - emails |
| What and where is self-authenticating evidence? | Self-authenticating ev. require no extrinsic evidence of authority. The list of self-authenticating evidence is found in 902. (ex: signature + gov seal, public doc from foreign co., book, pamphlet by public authority). |
| TRUE or FALSE: FRE 903 states that a subscribing witness (signs doc to show they saw doc execution) only needed if required by jurisdiction governing validity of document. | TRUE. |
| What does FRE 106 say about completeness of wiriting/recorded statements? | The adverse party can require introduction at that time of any other part/other writing or recorded statement that in fairness should be considered at the same time. |
| What are the concerns surrounding Hearsay? | Mistatement, insincerityyyyyyyyFIX THIS FIX THIS FIX THIS |
| Define hearsay. | Under 801, it is an 1) an out of court statement 2) offered for the truth of the matter asserted. |
| TRUE or FALSE: FRE 802 explains the hearsay exceptions. | FALSE. FRE 802 states that: Hearsay is not allowed unless allowed by statute, FRE or SCOTUS rule. |
| Generally for Hearsay, there are _______ exceptions that fall into ________ categories. | 31 exceptions that fall into 4 categories. |
| What are the 4 categories that hearsay exceptions fall into? | 1. Exemptions 801.D: prior statements by witness; statements by opp. parties. 2. Declarant unavailable 804: high need for statement. 3. Regardless of declarant available 803: higher reliability of statement. 4. Other trustworthiness guarantee 807. |
| What is the general process for using a hearsay exception? | The proponent of evidence has burden. They must prove by preponderance of ev. that statement meets exception. Admissiblity is then decided by teh judge under 104.a. The relevancy is still determined by the jury under 104.b. |
| FRE 805 states, "Each part of combined statement must be admissible under an exception." What is this referring to? | This is talking about the concept of hearsay within hearsay. |
| Under FRE 801, if the declarant testifies and is subject to CX, prior witness statements are not hearsay if: | 1. Inconsisitent w/declarant testimony + given under penalty of perjury + at proceeding 2. Consistent with testimony + offered to rebut credibility/impeachment charge of fabrication/influence/motive 3. Identifies person D perceived earlier |
| Under 803(1), what falls under the Present Sense Impression Exception? | A. Availability of Declarant is irrelevant B. 1) Statement describing/explaining event/condition made 2) while or immediately after declarant perceived it. NOTE: only a real description. No analysis. If time elapses, look at what declarant was doing in interim, if they were trying to communicate, it's okay. |
| Define Excited Utterance under 803(2). | A. Declarant availability is irrelevant. B. 1) Statement relating to starting event/condition made 2) while declarant was under stress of excitement it caused. NOTE: can be written, but not social media. Utterance must be related to event causing excitement. |
| Under 803(3) what is the Then Existing g State of Mind exception? | A. Declarant availability is irrelevant. B. Statement of then existing state of mind (motive, intent, plan)/emotional, sensory, physical condition. C. Statements of memory/belief not admissible if offered to prove the truth of the remembered/believed fact. |
| What does Hillmon tell you about 803(3) say about future plans? | Then existing state of mind can be used to look forward for plan in future. Ex: "I don't want to live" was admitted because subsequently burned house down because of mental state. |
| What is the Medical Treatment hearsay exception under 803(4)? | A. Declarant availability is irrelevant. B. Statement made for/reasonably pertinent to medical diagnosis or treatment. (this is broad). C. Describes medical history/past or present symptoms/inception or general cause. |
| How does 803(5), Recorded Recollection exception work? | A. Declarant must be available + testify as witness. B. Record admissible on matter witness once knew but now cannot recall well enough to testify fully. (must satisfy 602). C. Record can be read into ev, but only used as exh. if offered by adverse party. NOTE: different from 612 b/c it's for the truth of the matter asserted. |
| What are the requirements for the Business Records hearsay exception under FRE 803(6)? | A. Records made by/from info transmitted by someone with knowledge. (org. insiders only. Note exception, though.) B. Records kept in course of reg conducted activity of biz C. Made in reg. practice D. Foundation laid by qualified witness (familiar w/process) E. No other trustworthiness issues (wasn't made in anticipation of litigation). |
| In regards to FRE 803(b), Businesss Records exception, what is the outsider seller exception? | In regards to the information being transmitted by an insider, an outsider can meet this requirement if outsider has 1) adopted as own 2) relied upon it and 3) is reliable. |
| Under FRE 803(8), what is the Public Records exception? | A. Records of public office are: 1) office's activities, 2) matter osbered while under legal duty to report (excludes law enforcement), 3) factual findings from legally authorized investigation in civ case/against gov in crim case. B. No other trustworthiness issues. NOTE: Oates case: public records must be admitted under this, can't try as biz rec. |
| What are the 804 exceptions? | As defined by 804(a), these have to do with unavailable declarants. |
| Under 804(a), what are the five ways a declarant can be determined to be unavailable? | 1. Exempted from testifying for privilege. 2. Refuses to testify (held in contempt + penalty by ct). 3. Does not remember subject matter. This is real or feigned. has to do with NO recollection. not just fuzzy details. 4. Can't be present (death, illness, psychologically unavailable). 5. Absent from trial. (must use reasonable means to persuade or take depo) NOTE: Does not apply if statement proponent wrongfully caused/procured declarant unavailable to prevent testimony. |
| Under 804.b.1, how do you use former testimony exception? | A. Declarant must be unavailable as a witness. B. Testimony given as witness at rial/hearing/depo C. Offered against same party (can be predecessor in interest) D. Who had opp + similar motive to develop in prior proceeding. |
| Under 804.b.1 and the former testimony exception, what does it mean to have had "opportunity" and "similar motive"? | Opportunity: need not have actually conducted. Motive: ensures prior questioning adequately substitutes inability to CX now. Look at: 1) type of proceeding, 2) strategy/objectives at each proceeding, 3) stakes in each, 4), number of issues/parties at each. |
| The Dying Declaration exception is what??? | Under 804.b.2, dying declarations are admissible when: 1) declarant is unavailable, 2) it's a homicide/civil case, 3) declarant must subjectively believe death is imminent, 4) statement must be about cause/circumstances of death. |
| How does 804.b.3, the Statement Against Interest exception work? | A. Declarant must be unavailable. B. Statement that reasonable person in situation would have made only if person believed it to be true b/c when made it: 1) was contrary to dec. proprietary/pecunary interest, 2) invalidated dec. claim against another, 3) exposed dec. to civil/crim liability. NOTE: in crim case, must be supported by corroborating circumstances indicating its trustworthiness. |
| What is the rule for Forfeiture under 804.b.6? | A. Dec is unavailable B. Statement admitted against a party that 1) wrongully caused (or acquiesced) in 2) wrongdoing causing the declarant's unavailability and 3) intended the result. |
| Under 801.d.2, how do Statement Against Opposing Party (party opponents) work? | A. 1) Statement offered against opp. party and 2) made by the party 3) adopted by party/believed to be true (silence can = adoption). FIX THIS FIX THIS FIX THIS |
| Under 801.D.2, how do Statements Aainst Opposing Party (w/multiple parties) Work? | Statements can only be used against party who actually made the statement. Civ: judge gives limiting instruction under 105 or redacts Crim: Confrontation Clause issues arise |
| Explain how Bruton and Harwood work. | Bruton: if confession directly implicates another D and dec. doesn't take stand, limiting instruction is not enough. Harwood: some cts. don't allow using statement agaisnt co-D |
| Explain 801.d.2.E, Statements against co-conspirators. | A. Statement was made by party's coconspirator during adn in furtherance of conspiracy. B. Must have other proof to show scope of relationship. (not just statement itself). |
| TRUE or FALSE: FRE 807 is the residual exception which states that hearsay statements aren't excluded if: 1) has equivalent circumstantial guarantees of trustworthiness, 2) offered as evidence of material fact, 3) more probative/effective than any other ev. that can be obtained thorugh reasonable efforts, 4) admitting it serves interest of justice. | True. You must also give adverse party reasonable notice. |
| What does FRE 806 address? | Attacking dec. credibility. This may be attacked & then supported by ev that would be admisssible if dec. had testified as a witness. Dec. inconsistent statements may be admitted regardless of when it occured or if they had opportunity to explain/deny. If party against whom statement was admitted calls dec. as witness, may examine like on CX (leading Qs). |
| What is up with Crawford v. Washington? | It is about using testimonial ev. against a criminal D. Crawford has to do with the Confrontation Clause in the 6th Amend which gives the D the right to confront witnesses against him/herself. |
| TRUE or FALSE: Out of court statments must satisfy hearsay & FRE 403. | TRICK QUESTION: Technically true, but they must ALSO satisfy the Confrontation Clause Rules. |
| What is the rule found in Crawford? | Testimonial evidence is only allowed if declarant is 1) unavailable and 2) D had prior opportunity for CX. |
| In terms of Crawford and the CC, what does "testimonial" mean? | It would lead objective witness to reasonbly believe it would be used later in trial (i.e. police interrogation). NOTE: lab reports (seen in Williams): are testimonial if targeted by individual + formality; targeted OR formal = testimonial; neither targed NOR informal = non-testimonial. ALSO: statements between private parties = non-Test. |
| TRUE or FALSE: "Unavailable" under Crawford and the CC, has different requirements than FRE 804.a. | FALSE. They are the same. |
| For the Confrontation Clause, what does "prior opportunity to cross" mean? | Prior opportunity and similar motive. It's the same as 804.b.1. |
| What Rules guide expert opinions? | 701-704. |
| What does FRE 701address? | Lay witness opinion testimony: must be limited to: 1) rationally based on witness's perception and 2) helpful to clearly understand witness testimony/determine fact in issue, and 3) not based on scientific, technical specialized knowledge under FRE 702. NOTE: expert can offer lay opinion. Its about who offered + how acquired knowledge. |
| What does FRE 702 say about expert witnesses? | 1) A person is qualified as expert by knowledge, skill, training, education, experience. (Expert qualification must match scope of testimony). 2) expert knowledge will help trier of fact understand ev/determine fact. 3) test. based on sufficient facts/data. 4) reliable principles/methods. 5) expert reliably applied principles/methods to facts of case. NOTE: subject to 403. |
| What's up with this Daubert and Frye? | This goes to the reliability of princples/methods of experts: - Daubert factors: 1) tested, 2) subject to peer review/publication, 3) error rate, 4) gen. acceptance by relevant scientific community. Can consider these. - Frye: acceptance by relevant scientific community. Only applies to Frye. WHAT WHAT WHAT??????? |
| TRUE or FALSE: An expert may base opinion on facts/data in case expert has been made aware of or personally observed | TRUE. If: - experts in field would reasonably rely on those kinds of facts, basis need not be admissible. - facts/data basis are inadmissible, proponent may disclose if probative value in helping jury evaluate opinion substantially outweighs prejudicial effect. |
| What is the Expert Opinion Structure found under FRE 705? | Unless ct. orders otherwise, expert may state opinion then give reasons for it. NOTE: expert may be required to disclose basis on CX. |
| What and where is the rule guiding the scope of expert opinion found? | FRE 704: Opinion not objectionable for addressing ultimate issue. Judge can limit via 701/702 (helpfulness) or 403; and limit semantics. Crim: expert can't state opinion about whether D did/didn't have mental state that is element of crime. |
| What kind of facts can be Judicially Noticed under FRE 201: Judicial Notice of Adjudicative Facts? | The court may judicially notice a fact that is not subject to reasonble disptue b/c it: 1) is generally known within the trail court's territorial JDX; OR 2) can be accuratle and readily determiend from sources whose accuracy cannot reasonably be questioned. |
| TRUE or FALSE: FRE 407, ev. o subsequent remedial measures is not admissible to prove: 1) negligence, 2) culpable conduct, 3) a defect ina product or its design; or 3) a need for a warning or instruction. | TRUE. However, it can be used for other things like impeachment or to prove ownership, etc. etc. |
| What does FRE 408 address? | Compromise offers and negotiations: are prohibited to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or contradiction. EXCEPTIONS: can be admitted for other purposes like bias or prej... |
| TRUE or FALSE: Under FRE 409, offers to pay medical and similar expenses are not admissible to prove bias. | FALSE. They are not admissible to prove liability for the injury. |
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