Evidence Flashcards (73 Cards)

Evidence is relevant if it has any tendency to make a fact of consequence more or less probable than it would be without the evidence. (A very low bar.)

Relevant evidence may be excluded if its probative value is substantially outweighed by unfair prejudice, confusion, misleading the jury, undue delay, or needless cumulativeness. Exclusion is the exception, not the rule.

Barred to prove negligence, defect, or need for a warning. Admissible for ownership/control, feasibility (if disputed), or impeachment.

Offers and statements made in compromising a disputed claim are inadmissible to prove validity/amount or to impeach by prior inconsistent statement.

409 bars the offer to pay medical expenses to prove liability — but, unlike 408, accompanying admissions of fact are NOT protected.

Withdrawn guilty pleas, no-contest pleas, and statements during plea negotiations with a prosecutor are inadmissible against the defendant.

Not admissible to prove negligence/wrongful conduct; admissible for agency, ownership, control, or witness bias.

Habit = a person's regular, specific response to a specific situation; admissible to prove conduct in conformity, with no corroboration or eyewitness required.

Generally inadmissible to prove conduct; admissible only when character is an essential element of a claim/defense (defamation, negligent entrustment, child custody).

The accused may first offer evidence of a pertinent good character trait (reputation or opinion); the prosecution may then rebut.

Defendant may offer a pertinent trait of the victim (e.g., violence in self-defense); prosecution may rebut and offer the defendant's same trait. In homicide, if D claims the victim was the aggressor, the prosecution may show the victim's peaceful character.

Reputation or opinion. Specific acts only when character is an essential element, or on cross-examination of a character witness.

Not for propensity. Admissible for Motive, Intent, absence of Mistake, Identity, Common plan/scheme — with sufficient proof and prosecution notice.

A victim's other sexual behavior/predisposition is generally inadmissible. Criminal exceptions: source of semen/injury, prior acts with the accused (consent), and where constitutionally required.

A witness's character for truthfulness may be attacked or supported by reputation or opinion — but support only after it has been attacked.

May be asked about on cross (good-faith basis) if probative of truthfulness — no extrinsic evidence allowed.

Any witness, any crime requiring a dishonest act or false statement — automatically admissible, no balancing, felony or misdemeanor.

Ordinary witness: admissible unless 403 (prejudice substantially outweighs). Criminal defendant: admissible only if probative value outweighs prejudice (reverse balancing).

If more than 10 years since conviction or release (whichever is later), admissible only if probative value substantially outweighs prejudice, with notice.

May impeach any witness; extrinsic evidence allowed if the witness gets a chance to explain/deny. If made under oath at a prior proceeding, it is also substantive evidence (801(d)(1)(A)).

Always allowed, and extrinsic evidence is permitted — bias is never collateral.

An out-of-court statement offered to prove the truth of the matter asserted. Inadmissible unless an exclusion or exception applies.

Verbal acts / legally operative words; effect on the listener; circumstantial evidence of the declarant's state of mind; impeachment. If offered for a non-truth purpose, it is not hearsay.

No — hearsay requires a human assertion.

(A) prior inconsistent statement made under oath at a proceeding; (B) prior consistent statement to rebut a charge of recent fabrication or to rehabilitate; (C) prior identification. The declarant must testify and be subject to cross.

The party's own statement; adoptive (silence where a reply was expected); authorized spokesperson; agent/employee on a matter within scope during employment; co-conspirator during and in furtherance of the conspiracy. No personal knowledge or against-interest needed.

A statement describing an event made while or immediately after perceiving it.

A statement relating to a startling event, made while still under the stress of excitement it caused.

Statements of current mental/emotional/physical condition or intent (including intent to do a future act). Excludes statements of memory or belief offered to prove the fact remembered (except in will cases).

Statements of symptoms, history, or cause reasonably pertinent to treatment. Cause yes; fault generally no.

Witness once knew but now cannot recall; record made/adopted when fresh and accurate. It is read into evidence; received as an exhibit only if offered by the adverse party.

A record of a regularly conducted activity, made at/near the time by someone with knowledge, kept in the regular course, as a regular practice — shown by custodian/qualified witness; excluded if untrustworthy. (Absence of a record — 803(7).)

Records of a public office: its activities; matters observed under a legal duty (but not police observations against a criminal defendant); or factual findings from an investigation (civil cases, or against the government in criminal).

Privilege, refusal to testify despite a court order, lack of memory, death or illness, or absence and inability to procure attendance.

Testimony at a prior proceeding or deposition where the party (or, in civil cases, a predecessor in interest) had an opportunity and similar motive to develop it.

In a homicide prosecution or any civil case, a statement made under belief of imminent death about its cause or circumstances. The declarant need not actually die but must be unavailable.

Against the declarant's pecuniary, proprietary, or penal interest when made. If it exposes the declarant to criminal liability and is offered to exculpate the accused, it needs corroborating circumstances. (Unlike an opposing-party statement, the declarant must be unavailable.)

A party who wrongfully caused the declarant's unavailability intending to prevent testimony forfeits both hearsay and Confrontation objections.

Trustworthy hearsay with sufficient guarantees of trustworthiness, more probative on the point than other reasonably available evidence, offered with notice.

Admissible only if each layer independently satisfies an exception.

When a hearsay statement is admitted, the declarant may be impeached (and supported) as if they had testified.

Criminal case + statement offered against the accused + declarant does not testify and was not previously cross-examined + statement is testimonial → barred, even if a hearsay exception fits.

Testimonial = primary purpose to establish or prove past events for later prosecution (stationhouse interrogation, forensic certificates). Non-testimonial = primary purpose to meet an ongoing emergency (a 911 call for help).

At a joint trial, a non-testifying co-defendant's confession that facially incriminates the defendant violates the Confrontation Clause, even with a limiting instruction.

Protects a confidential communication between lawyer and client made for legal advice; the client holds it; it survives death. Exceptions: crime-fraud, and disputes between attorney and client. Protects communications, not the underlying facts.

(1) Spousal testimonial privilege — in criminal cases the witness-spouse may refuse to testify against the defendant-spouse (witness holds it; only during marriage). (2) Confidential marital communications — either spouse may bar disclosure of confidences made during marriage (survives divorce).

Recognized in federal court (Jaffee v. Redmond); the physician-patient privilege is a creature of state law. Waived when the patient puts the condition at issue.

The proponent must produce evidence sufficient to support a finding that the item is what it is claimed to be (a low bar). Self-authenticating (902): certified public records, official publications, newspapers, notarized documents, certified business records.

To prove the content of a writing, recording, or photograph, the original (or a duplicate) is required. It applies only when the content itself is at issue or a witness is testifying based on the writing — not when testifying to facts that merely happen to be recorded.

Lay: rationally based on the witness's perception, helpful, not specialized. Expert (702/Daubert): qualified, based on reliable principles reliably applied, and helpful; an expert may rely on inadmissible facts (703) if experts in the field reasonably would.

612: anything may refresh memory; the writing is not evidence (the adverse party may inspect and use it). 803(5): the record itself comes in (read aloud) because memory cannot be revived.

A court may notice adjudicative facts not subject to reasonable dispute (generally known or readily verifiable). In civil cases it is conclusive; in criminal cases the jury may, but need not, accept the fact.

106: when part of a writing is introduced, an adverse party may require any other part that in fairness ought to be considered at the same time. 105: evidence admissible for one purpose/party gets a limiting instruction on request.

When relevance depends on a fact (e.g., authorship), the judge admits it if a reasonable jury could find the fact by a preponderance; the jury ultimately decides. Contrast 104(a): judge alone decides admissibility/privilege.

When a party introduces part of a writing/recording, the adverse party may immediately require introduction of any other part that in fairness ought to be considered contemporaneously.

When evidence is admissible for one purpose but not another, the court restricts it to its proper scope on request — key for 404(b), prior inconsistent statements, and policy-exclusion evidence offered for bias/ownership.

Proof of character is by reputation or opinion; specific instances of conduct are allowed only on cross-examination or when character is an essential element of a claim/defense.

Present refreshed: witness reads anything to jog memory, then testifies from memory (the writing is not evidence; adversary may inspect it). Recorded recollection: witness once knew but now can't recall, the record was made when fresh — it is read into evidence, not admitted as an exhibit.

Leading questions are improper on direct but permitted on cross, for hostile/adverse witnesses, and for preliminary matters. Cross-examination is generally limited to the scope of direct plus credibility.

Machine-generated readouts (radar, thermometers, GPS) and animal "statements" are not hearsay because there is no human declarant — they raise authentication issues, not hearsay ones.

In a joint criminal trial, a non-testifying codefendant's confession that names the defendant violates the Confrontation Clause; a limiting instruction is insufficient (remedies: redaction, severance, or no admission).

Under FRE 801(d)(1)(B) it is non-hearsay (substantive) when offered to rebut a charge of recent fabrication/improper motive, or to rehabilitate after another attack — not merely to bolster.

A lay witness may testify only to matters of which they have personal knowledge; this is a foundational requirement distinct from competency and opinion rules.

Common methods: distinctive characteristics, voice identification, reply-letter doctrine, the telephone-directory/business-call rule, and the process/system method (for printouts and recordings).

No extrinsic foundation needed for public documents under seal, certified copies of public/business records, official publications, newspapers, trade inscriptions, and acknowledged (notarized) documents.

Voluminous writings/recordings may be presented through a chart or summary if the originals are made available to the other party; underlying records need not all be admitted.

The rule applies only when (a) proving the contents of a writing or (b) the knowledge derives from the writing itself; it does not apply where a witness has independent firsthand knowledge of the underlying event.

The attorney-client privilege and work-product protection do not cover communications made to enable or further a future or ongoing crime or fraud.

Testimonial privilege: criminal cases only, held by the witness-spouse, covers all testimony, ends at divorce. Confidential marital communications: civil or criminal, either spouse holds, covers communications made during a valid marriage, survives divorce.

Trigger: A party seeks to introduce evidence of an alleged sexual-assault victim's other sexual behavior or predisposition.
The rape shield rule generally bars evidence offered to prove that an alleged victim of sexual misconduct engaged in other sexual behavior or to prove the victim's sexual predisposition. In a criminal case, narrow exceptions permit specific instances offered to show that someone other than the accused was the source of physical evidence, prior sexual behavior between the victim and the accused offered on consent, and evidence whose exclusion would violate the defendant's constitutional rights. In civil cases, such evidence is admissible only if its probative value substantially outweighs the danger of harm to the victim and unfair prejudice.

Trigger: A party fails to deny an accusatory statement made in his presence that he would naturally be expected to contest.
A statement is an adoptive admission, and therefore not hearsay when offered against a party, where the party manifested an adoption of or belief in its truth. Adoption may be express or may be inferred from silence when a reasonable person, having heard and understood the statement under circumstances calling for a response, would have denied it. Silence after Miranda warnings, however, cannot be used as an adoptive admission because the accused has an explicit right to remain silent.

Trigger: The prosecution offers a statement by one conspirator against another.
A statement by a party's co-conspirator made during and in furtherance of the conspiracy is admissible against the party as a non-hearsay opposing-party statement. The proponent must establish, by a preponderance and considering the statement itself together with independent evidence, that a conspiracy existed and that both the declarant and the party against whom it is offered were members. Statements made before the conspiracy formed or after its objectives were achieved or abandoned do not qualify because they are not in furtherance of the venture.

Trigger: A witness cannot recall a fact and is shown a writing to jog his memory.
Under the doctrine of present recollection refreshed, a witness whose memory fails may be shown any item to revive his recollection, after which he testifies from his refreshed memory and the item itself is not admitted into evidence. The writing used to refresh need not be authenticated or independently admissible because it is not offered for its truth. The adverse party is entitled to inspect the item, cross-examine the witness about it, and introduce relevant portions into evidence.