evidence Flashcards
Browse 500 sets of evidence flashcards
What should you watch out for with stip…
Lay Witness Personal Knowledge Requirem…
Lay Testimony/Competency of a Witness
IMPEACHMENT
strategic use of stipulation to keep damaging evidence out
In order for a lay witness to testify, he must have personal k…
Lay testimony is any testimony given by a witness not qualifie…
Impeachment of a witness is the questioning or discrediting of…
What should you watch out for with stip…
strategic use of stipulation to keep damaging evidence out
Lay Witness Personal Knowledge Requirem…
In order for a lay witness to testify, he must have personal k…
Three major areas of evidence law
Two minor areas of evidence law
General principals of the federal rules…
Two Step Approach for Deciding Whether…
1. Relevance... 2. Witnesses... (a) Form of examination - Types of…
1. Writings ... 2. Privileges
The rules apply to:... (1) All trials in fed court - civil and c…
Step 1: Determine whether the evidence is relevant (i.e., tend…
Three major areas of evidence law
1. Relevance... 2. Witnesses... (a) Form of examination - Types of…
Two minor areas of evidence law
1. Writings ... 2. Privileges
What Federal Rules of Evidence Apply To…
P wants to introduce statements made by…
Judge vs. Jury
Judge vs. Jury re Witnesses
Apply To:... 1. Civil... 2. Criminal... 3. District Court... 4. Appeals... 5.…
The issue is whether the statements are testimonial and theref…
Jury = trier of fact... Judge = trier of law (and trier of fact i…
Judge determines and can consider inadmissible evidence:... 1. Wh…
What Federal Rules of Evidence Apply To…
Apply To:... 1. Civil... 2. Criminal... 3. District Court... 4. Appeals... 5.…
P wants to introduce statements made by…
The issue is whether the statements are testimonial and theref…
Rule 401. Definition of "Relevant Evide…
Rule 402. General Admissibility of Rele…
Rule 403: Excluding Relevant Evidence
Rule 104. Preliminary Questions (a) In…
Evidence is relevant if: (a) it has any tendency to make a fac…
Relevant evidence is admissible unless any of the following pr…
The court may exclude relevant evidence if its probative value…
The court must decide any preliminary question about whether a…
Rule 401. Definition of "Relevant Evide…
Evidence is relevant if: (a) it has any tendency to make a fac…
Rule 402. General Admissibility of Rele…
Relevant evidence is admissible unless any of the following pr…
101
201
301
302
Scope; Definitions ... (a) Scope. These rules apply to proceedi…
Judicial Notice of Adjudicative Facts ... (a) Scope. This rule…
Presumptions in Civil Cases Generally ... In a civil case, unle…
Applying State Law to Presumptions in Civil Cases ... In a civi…
101
Scope; Definitions ... (a) Scope. These rules apply to proceedi…
201
Judicial Notice of Adjudicative Facts ... (a) Scope. This rule…
A plaintiff sued a chimney sweeping com…
A plaintiff and a defendant were involv…
The owner of a small business was injur…
The defendant is on trial for murder. D…
B. The evidence is not hearsay because the statement is not of…
C. The grand jury statement is admissible both as impeachment…
B. Only the witness's testimony is necessary to introduce the…
D. The court should rule that the evidence is inadmissible. A…
A plaintiff sued a chimney sweeping com…
B. The evidence is not hearsay because the statement is not of…
A plaintiff and a defendant were involv…
C. The grand jury statement is admissible both as impeachment…
104(A)
104(B)
201(A)
201(B)
• In General: The court must decide any preliminary question a…
• Relevance That Depends on a Fact: When the relevance of evid…
Scope. This rule governs judicial notice of an adjudicative fa…
Kinds of Facts That May Be Judicially Noticed. The court may j…
104(A)
• In General: The court must decide any preliminary question a…
104(B)
• Relevance That Depends on a Fact: When the relevance of evid…
logical evidence
empirical evidence
anecdotal evidence
argument
evidence based on facts and a clear rationale
data collected through direct observation
Evidence based on personal accounts of incidents
A statement put forth and supported by evidence
logical evidence
evidence based on facts and a clear rationale
empirical evidence
data collected through direct observation
Rationale behind FRE
Rule 103(a) Preserving a Claim of Error
Rule 401. Test for Relevant Evidence
Tips about Relevancy
1. Mistrust of Juries ... 2. To serve substantive policies relati…
Only if Error effects a substantial right of party (one that w…
Evidence is relevant if:... (a) it has any tendency to make a fac…
1. Relevant should always be considered separate from weight o…
Rationale behind FRE
1. Mistrust of Juries ... 2. To serve substantive policies relati…
Rule 103(a) Preserving a Claim of Error
Only if Error effects a substantial right of party (one that w…
Rules 101 & 1101
Types of Evidence
oral testimony
real evidence
SCOPE OF RULES... Lays out where the rules apply: ... Civil Cases/…
1. Oral... 2. Real Evidence... 3. Documents... 4. Demonstrative... 5. Stip…
Fact witness, Character Witnesses [Article 6]... Expert Witnesses…
evidence that consists of physical material or traces of physi…
Rules 101 & 1101
SCOPE OF RULES... Lays out where the rules apply: ... Civil Cases/…
Types of Evidence
1. Oral... 2. Real Evidence... 3. Documents... 4. Demonstrative... 5. Stip…
grounds for declarant unavailability
dying declaration
Hearsay Rule
definition of statement, declarant, out…
privilege, refusal, forgot, dead, phisically/mentally ill, can…
in a prosecution for homicide or civil case, the statement tha…
A statement the declarant made out of court offered to prove t…
Statement: oral or written assertion, or conduct intended to a…
grounds for declarant unavailability
privilege, refusal, forgot, dead, phisically/mentally ill, can…
dying declaration
in a prosecution for homicide or civil case, the statement tha…
Rules 101 & 1101
Motions in Limine
Rule 103
Rule 105
SCOPE OF RULES... Lays out where the rules apply: ... Civil Cases/…
Meaning "at the threshold"... Motions that are mainly concerned…
OBJECTING AND STRIKING EVIDENCE - RULING ON EVIDENCE... Outlines…
LIMITING INSTRUCTIONS ... Outlines how and when a judge should a…
Rules 101 & 1101
SCOPE OF RULES... Lays out where the rules apply: ... Civil Cases/…
Motions in Limine
Meaning "at the threshold"... Motions that are mainly concerned…
Relevance
Logical Relevance
Legal Relevance
Logical/Legal Relevance - If Relevance…
Relevance is an issue when an interrogatory asks if evidence i…
Evidence is logically relevant if it tends to make a fact of c…
Logically relevant evidence may be excluded if its probative v…
See rules above.... Here, [material fact] was a material fact in…
Relevance
Relevance is an issue when an interrogatory asks if evidence i…
Logical Relevance
Evidence is logically relevant if it tends to make a fact of c…
Rule of Completeness
Judicial Notice Adjudicative fact
403 Balancing
Character Evidence Civil Case
part of writing/recorded adverse may compel introduction of om…
- Court must take judicial notice of an adjudicative fact if p…
Probative is substantially outweighed by danger of unfair prej…
Generally not admissible to prove conforming conduct UNLESS ch…
Rule of Completeness
part of writing/recorded adverse may compel introduction of om…
Judicial Notice Adjudicative fact
- Court must take judicial notice of an adjudicative fact if p…
Leading Questions
Compound Questions
Argumentative or Harassing Questions
Question Calls for a Narrative Response
... are ones which suggest an answer. They are not allowed on…
... ask more than one question at a time. They are not permitt…
A question is argumentative when it simply contests the testim…
A question is not allowed to call for a narrative response. Yo…
Leading Questions
... are ones which suggest an answer. They are not allowed on…
Compound Questions
... ask more than one question at a time. They are not permitt…
Federal - Relevant Evidence
CA Relevant Evidence
Probative Value > Undue Prejudice... [Fed.…
Hearsay
Evidence is relevant if it has any tendency to make the existe…
Evidence is relevant if it has any tendency to make the existe…
Even if evidence is relevant, court may exclude it if the prob…
Hearsay is a statemnet, made other than by a witness while tes…
Federal - Relevant Evidence
Evidence is relevant if it has any tendency to make the existe…
CA Relevant Evidence
Evidence is relevant if it has any tendency to make the existe…
Rule 401. Test for Relevant Evidence
Rule 402: General Admissibility of Rele…
Rule 403. Excluding Relevant Evidence f…
Rule 404 (a) Character Evidence
Evidence is relevant if:... (a) It has any tendency to make a fac…
Relevant evidence is admissible unless any of the following pr…
The court may exclude relevant evidence if its probative value…
1) Prohibited Uses. Evidence of a person's character or charac…
Rule 401. Test for Relevant Evidence
Evidence is relevant if:... (a) It has any tendency to make a fac…
Rule 402: General Admissibility of Rele…
Relevant evidence is admissible unless any of the following pr…
PROPOSITION 8
PROP 8 EXEMPTIONS
RELEVANCE
LOGICALLY RELEVANT PARAGRAPH EXAMPLE
The California Consittution includes Proposition 8 which indic…
1. Exclusionary rule base on US Constitution... 2. Exclusionary r…
In order to be admissible, evidence must be both logically and…
Here, D's statement was "Patty's an aids ridden *****". This s…
PROPOSITION 8
The California Consittution includes Proposition 8 which indic…
PROP 8 EXEMPTIONS
1. Exclusionary rule base on US Constitution... 2. Exclusionary r…
Admissibility
Admissibility... Types of Evidence
Admissibility... Relevance
Admissibility... Relevance... Logical Relevan…
We can only weigh evidence at trial if it is admissible... Eviden…
Direct Evidence: Evidence that, if believed, will conclusively…
Generally, we don't want evidence that is unrelated/unimportan…
o Does the evidence increase(or decrease) the jury's confidenc…
Admissibility
We can only weigh evidence at trial if it is admissible... Eviden…
Admissibility... Types of Evidence
Direct Evidence: Evidence that, if believed, will conclusively…
Rationales to Exclude
Ohio Exclusion Rules
Similar Occurrences
Exceptions to General Rule for Similar…
Unfair prejudice... Confusion of the issues ... Misleading the jury…
Mandatory exclusion if probative value is substantially outwei…
General rule for other time, place, occurrence, people: exclude
Causation ... Plaintiff's prior accidents or claims... Intent or sta…
Rationales to Exclude
Unfair prejudice... Confusion of the issues ... Misleading the jury…
Ohio Exclusion Rules
Mandatory exclusion if probative value is substantially outwei…
Tex. 403
Substantially Similar Circumstances
Habit
Industrial Standard of Care
Does not include "waste of time"
May be admitted for:... 1. Existence of a Dangerous Condition... 2.…
Admissible:... Frequency of Conduct... Particularity of Circumstance…
Admissible as evidence of appropriate standard of care
Tex. 403
Does not include "waste of time"
Substantially Similar Circumstances
May be admitted for:... 1. Existence of a Dangerous Condition... 2.…
Who can be a Witness?
Expert Witness Requirements
When is an Expert Witness NOT allowed t…
How can the Court take steps to ensure…
o Anyone can be a witness, as long as testifying to personal k…
o Only in precise area of expertise... o Lay Foundation - show e…
Criminal case - no opinion mental state of defendant as to ele…
Court can take steps to be in REASONABLE CONTROL to ensure wit…
Who can be a Witness?
o Anyone can be a witness, as long as testifying to personal k…
Expert Witness Requirements
o Only in precise area of expertise... o Lay Foundation - show e…
fact
statistic
real world example/common knowledge
research/study
something which can be proven to be true
a numerical fact from a survey or poll
information most people know or believe to be true from experi…
information from a credible group of researchers
fact
something which can be proven to be true
statistic
a numerical fact from a survey or poll
104(a)
104(b)
104(d)
403
Judge (LAW)... Judge decides any preliminary question about wheth…
Jury (FACT):... Jury makes final determination of relevance when…
Cross-Examining D in Criminal Case... By testifying on preliminar…
Excluding Relevant Evidence for Prejudice, Confusion, Waste of…
104(a)
Judge (LAW)... Judge decides any preliminary question about wheth…
104(b)
Jury (FACT):... Jury makes final determination of relevance when…
Jury Deliberations
Jury Deliberations EXCEPTIONS
Tanner v. United States
CEC 1150
Rule 606(b)- inquiry into the validity of the verdict or indic…
But a juror may testify about whether extraneous prejudicial i…
Juror intoxication is not an outside influence as recited in 6…
unlike 606b, jury can testify to the objective events that occ…
Jury Deliberations
Rule 606(b)- inquiry into the validity of the verdict or indic…
Jury Deliberations EXCEPTIONS
But a juror may testify about whether extraneous prejudicial i…