Evidence questions
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| What is the role of judge and jury | judge decides questions of law. judge decides whether evidence is admitted or not. not bound by the Rules of Evidence. jury determines the weight and credibility of the evidence
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| When must a preliminary hearing about the admissibility of evidence be held outside of the hearing of the jury? | (1) in determining admissibility of a confession in a criminal trial; (2) when the defendant in a criminal case is a witness and requests it, and; (3) when the interests of justice so require
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| When will an error form the basis of appeal? | if there is a mistake in the admissibility error will only form basis of appeal if some substantial right of the party has been affected (i.e. not harmless error) and if the court was notified of the error at trial.
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| Two ways of notifying the court of an error at trial? | Offer of proof - ruling excludes evidence; objection - ruling admits evidence
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| Plain error rule? | errors that affect substantial rights are grounds for reversal even if no objection was made
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| What is judicial notice | court's acceptance of a fact as true without requiring formal proof. court must do it if a party requests and provides the ct with the necessary info. May do it at own discretion when appropriate but not against a crim. d. first time on appeal
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| What makes a fact "not subject to judicial notice? | When facts are generally known within the jurisdiction of the court or that can accurately and readily be determined by sources whose accuracy cannot be questioned.
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| What is the effect of judicial notice taken in a civil case? | court will instruct the jury that it is bound to accept the fact as conclusive
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| What is the effect of judicial notice taken in a criminal case? | j
Jury members instructed that they MAY accept any judicially noticed fact as conclusive
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| What is a leading question? | Suggests the answer within the question itself
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| When are leading questions generally permissible on direct? | (1) to elicit preliminary background not in dispute; (2) witness is a child or has trouble communicating due to age or infirmity; or (3) hostile witness
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| Other than leading questions, what other sorts of questions are improper | compound questions; assumes facts not in evidence; argumentative question; calling for an unwarranted or unjustified conclusion; repetitive
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| When may a witness not be excluded? | When the party's presence is essential to the presentation of the case or whose presence is permitted by law (victims) may not be excluded
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| When is character evidence admissible in a civil case? | When character is an essential element of the case. ex. defamation case
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| When is evidence of a crime victim's character admissible to prove propensity | When it is relevant to the defense asserted; prosecutor may rebut and introduce evidence that the d has the same character trait as the victim
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| When can the defendant introduce evidence of good character? | When it is inconsistent with the type of crime charged and relevant; opinion or reputation; cannot introduce specific prior acts
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| When can prior bad acts be admitted? | MIMIC - motive, intent, absence of mistake, identity, or common plan or scheme
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| When can habit evidence be introduced? | Permissible to argue a person has a particular, regular routine as a way of arguing that she acted in conformity. is reliable
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| What can a juror not testify to? | After can about whether (1) extraneous prejudicial info was brought to jury's attention; 2)any outside influence was improperly brought to bear on a juror; and 3) clerical error was made in entering the verdict
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| What can a juror not testify to? | Can't testify during own trial; or to the internal deliberations;
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| Do the federal rules contain a dead man statute? | no - does not have a set of statutes which limits testimony about convos and transactions with ppl since deceased.
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| Can a witness be impeached by any party? | Yes; but a witness cannot be called solely to be impeached
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| When can a witness be impeached using past crimes | Crimes of dishonesty - may be used in a criminal or civil case; within 10 years of the conviction (felony or misdemeanor); 2) serious crimes within the past 10 years and courts must balance the probative value against prejudicial effect.
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| When can a serious crime be used against a witness other than the criminal defendant | Within 10 years and the value is substantially outweighed by its prejudicial effect
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| When can a serious crime be used against a criminal defendant | within 10 years and the prosecutor has to show that the probative value outweighs the prejudice to the defendant
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| When can a crime older than 10 years be used | If the conviction's probative value substantially outweighs its prejudice and the proponent gives the adverse party reas. written notice, other party has fair opportunity to contest it
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| How can a witness be impeached by prior inconsistent statement | On cross or through extrinsic; extrinsic can't be used to impeach about collateral matters and the witness must be given the opportunity to explain (not ahead of time)
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| Impeachment techniques | 1) impeachment by prior inconsistent statement; 2) bias; 3) sensory competence - showing deficiency in capacities to perceive, recall, or relate; 4) hearsay declarant
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| What kind of evidence can be used to impeach a hearsay declarant? | The same as if the declarant had testified as a witness.
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| When can a lay witness testify as to their opinion? | When the opinion is 1) rationally based on the perception of the witness; 2) helpful to a clear understanding of the witness' testimony; and 3) not based on scientific, technical or specialized knowledge
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| What is the daubert test? | Courts require that the expert: 1) be qualified - through knowledge, skill, experience, training, or education AND 2)base his opinion on sufficient facts or data; and 3) apply the principles and methods reliably to the facts of the case
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| When can an expert not opine on an ultimate issue? | When the issue is whether a criminal d had the requisite mental state of any element of a crime or defense
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| What must an expert base their opinion on? | personal observation; facts made known during the trial; or facts not known personally but supplied to her outside the courtroom as long as they are the type reasonably relied on by experts in that field
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| How can real evidence (things objects) be authenticated | (1) personal knowledge; 2) by distinctive markings or characteristics; 3) chain of custody
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| How can documentary evidence be authenticated? | standard - sufficient to support a finding or enough proof that the jury can find that the document is what the proponent claims it to be
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| Authentication of ancient document? | is considered authentic if 1) at least 20 years old; 2) in a condition unlikely to create suspicion; and 3) was found in a place likely be if authentic
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| What are self-authenticating documents? | public documents bearing a government seal or signature of an authorized governmental official; official publication; newspapers; trade inscription; notarized documents; commercial paper; business records certified by a caretaker
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| What is the reply letter doctrine? | A reply letter may be authenticated by evidence that it was written in response to another letter as long as it's unlikely that it was written by someone other than the recipient of the first letter
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| How can a voice be authenticated | any person who has heard the voice at any time
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| How can a telephone convo be authenticated | caller familiar with the voice; evidence that speaker knew facts particular to a person; evidence that the caller dialed the number believed to be the speakers and speaker identified himself; caller phoned business and spoke person answered about business
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| What is the best evidence rule? | Original document must be used to prove contents of a document when the contents of the writing are in issue
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| When does the best evidence rule apply? | ONLY when the content of the document is at issue
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| When is the content of a document, video, recording at issue? | 1)the document is used as proof of an event happening; 2) document has legal effect, contract or will; 3) witness is testifying based on facts learned from the document
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| What are exceptions to the parol evidence rule? | 1)clarify an ambiguity; 2) prove some trade, custom, or course of dealing; 3) show fraud, duress, mistake or some illegal pupose; or show that consideration has or has not been paid
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| When does the parole evidence rule apply | only to prior or contemporaneous negotiations not to negotiations that took place after a contract was created
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| When can a privilege be waived | If the party holding the privilege: 1) voluntarily discloses the communication to someone not protected by privilege; 2) fails to assert the privilege in a timely matter; or 3) contractually waives the privilege in advance
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| What is spousal immunity | spouse of a criminal d may not be compelled to testify against his or her spouse; in fed court testifying spouse holds the privilege; some states criminal spouse holds the privilege
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| What is the time period of spousal immunity? | applies only during a valid marriage; exception is when the criminal charge is against the spouse or their children
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| What is confidential marital communications? | protects communications made during a marriage; held by both spouses; both civil and criminal cases; can be invoked even after the marriage has terminated
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| When can a spouse testify about private marital communications? | When one spouse is suing the other or when one spouse is charged with a crime against the other spouse or the children of either of them
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| What is attorney-client privilege | confidential communication between client and a lawyer for purposes of providing/obtaining legal advice; client holds the privilege and is the only one who may waive; exceptions - does not apply to a future crime or fraud or disputes btwn atty and client
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