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Evidence
Evidence
150
Law
Graduate
09/26/2016
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Term
Rule 408 contains a special exception for civil enforcement actions. Who has to bring the civil action? Which type evidence falls within the exception: compromise, offer to compromise, or statements made during compromise negotiations? In what type of case is the evidence admissible?
 Definition
A government agency must bring the civil claim, using its investigative, regulatory, or enforcement authority. Only statements made during compromise negotiations fall within the exception. Those statements are admissible in a later criminal case.
Term
State the requirements for rehabilitating a witness with evidence of the witness`s good character for truthfulness or prior consistent statement
 Definition
The witness`s credibility must have been attacked; and the rehabilitation must be relevant to refute the attack.
Term
To refresh a witness`s recollection, what foundation must the lawyer lay?
 Definition
(1) The witness does not remember; and (2) the memory jogger might help refresh the witness`s memory. (Rule 612)
Term
When a settlement offer or statements are made at a preliminary stage rather than during a formal settlement conference, the party seeking to introduce the evidence may argue that the protections of Rule 408 had not yet been triggered. What conditions are necessary to trigger the protection of Rule 408?
 Definition
Rule 408 is triggered only when there is a disputed claim and the parties are engaged in compromise negotiations.
Term
Under Rule 104(b), in situations where the jury determines whether evidence is admissible under a particular rule, what role does the judge play?
 Definition
The judge screens the evidence to determine whether a reasonable jury could find, by a preponderance, that the evidence meets the requirements of the rule.
Term
Rule 410 prohibits use of evidence about criminal pleas and plea discussions. What are the four types of evidence that Rule 410 prohibits?
 Definition
Plea of guilty later withdrawn, plea of no contest, statements made to the court in conjunction with those pleas, and statements made during plea discussions with a prosecutor if no plea resulted.
Term
Rule 608(b) governs impeachment of a witness`s character for truthfulness with specific instances of conduct. State the requirements of Rule 608(b).
 Definition
Under Rule 608(b), a witness may be impeached with specific instances of conduct if (1) they are probative of untruthfulness; and (2) the cross examining lawyer has a good faith basis for believing the specific instances occurred.
Term
State Rule 401`s standard for relevance.
 Definition
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.
Term
List the crimes that fall within 609(a)(2).
 Definition
Perjury; subornation of perjury; false statement; fraud; embezzlement; false pretenses; bribery; counterfeiting; passing bad checks; forgery. Note that crimes very similar to those listed can also qualify.
Term
When may the attorney use leading questions on cross-examination?
 Definition
(1) When necessary to develop the testimony (usually because the witness is very young or has forgotten); and (2) when the witness is a hostile witness or an adverse party. (Rule 611)
Term
May a party use extrinsic evidence to prove that a witness has a defect in perception or memory?
 Definition
Yes.
Term
To impeach with a prior felony conviction under Rule 609(a)(1), the judge must conduct a balancing test. State the balancing test that the court uses when the witness IS a criminal defendant.
 Definition
The court uses a modified reverse Rule 403 test, under which the court may admit the evidence only if its probative value outweighs its prejudicial effect to the defendant. (Note that this test favors excluding the prior conviction.)
Term
Which types of evidence may be used to refresh a witness`s recollection: only documents made by the witness, any documents, or anything?
 Definition
Anything.
Term
State Rule 408`s prohibition on the use of compromise offers and negotiations.
 Definition
Under Rule 408, evidence of a compromise, an offer to compromise, or statements made during compromise negotiations are not admissible to prove the validity or amount of a disputed claim or to impeach by inconsistency.
Term
Rule 609 governs impeachment with prior convictions. The rule has two options for admitting convictions. State the requirements for each of those options.
 Definition
Rule 609(a)(1): the crime must have been a felony (punishable by more than one year) AND pass a balancing test. Rule 609(a)(2): establishing the elements of the crime must have required proving a dishonest act or false statement.
Term
When a party refreshes a witness`s recollection, the proponent must show the document to the opposing counsel. Who can show it to the jury: the party doing the refreshing, the adverse party, both, or neither?
 Definition
Only the adverse party may show it to the jury, and the jury may use it only to assess the witness`s credibility. (Rule 612)
Term
State Rule 407`s prohibition on use of subsequent remedial measures.
 Definition
Under Rule 407, evidence of subsequent remedial measures is not admissible to prove negligence, culpable conduct, defect in a product or its design, or a need for warning or instruction.
Term
Under Rule 608(b), when may the impeaching lawyer use extrinsic evidence to prove that the witness committed the untruthful acts?
 Definition
Never. Rule 608(b) expressly forbids use of extrinsic evidence.
Term
Despite Rule 410`s text, if a prosecutor is not present during plea discussions, the court will still give the defendant Rule 410`s protection if the defendant meets a two-part test. State the requirements of that test.
 Definition
(1) The defendant must have had an actual subjective expectation of negotiating a plea; and (2) The expectation must have been reasonable given the totality of the objective circumstances. (Note: courts rarely find for the defendant.)
Term
To impeach with a prior conviction under Rule 609(a)(2), does the crime have to be a felony?
 Definition
No. The crime can be a misdemeanor or a felony.
Term
Does Rule 410`s prohibition block use of plea bargaining statements in criminal cases, civil cases, or both?
 Definition
Both.
Term
State Rule 409`s prohibition on the use of medical expenses.
 Definition
Under Rule 409, evidence of an offer to pay or payment of medical expenses resulting from an injury is not admissible to prove liability for the injury.
Term
When impeaching a witness with a prior inconsistent statement or by contradiction, when may a lawyer use extrinsic evidence?
 Definition
When the matter is noncollateral (i.e., nontrivial).
Term
Rule 404(b) prohibits using specific instances (i.e., crimes, wrongs, or other acts) to prove a person`s propensity, but contains an "other purposes" clause. What other purposes may specific instances be used to prove?
 Definition
Motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. (Note: this is a nonexhaustive list.)
Term
In what types of criminal cases is character an "essential element"?
 Definition
Character is not an essential element for any crime. Character is an essential element for the defense of entrapment, where the defendant must prove she lacked a predisposition to commit the crime.
Term
State Rule 411`s prohibition on the use of liability insurance.
 Definition
Under Rule 411, evidence that a person does or does not have liability insurance is not admissible to prove that the person acted negligently or wrongfully.
Term
Under Rule 404(b), in determining whether there is sufficient evidence that the other act occurred, what standard does the judge use?
 Definition
The judge uses the 104(b) screening standard, under which she must determine whether the evidence is sufficient for a reasonable jury to find by a preponderance that the person did the other act.
Term
Rule 404(a) prohibits using opinion or reputation evidence to prove a person`s propensity. It contains two exceptions. What type of case are those exceptions available in: civil or criminal or both? Who can trigger the exceptions: defendant, prosecutor, or both?
 Definition
Rule 404(a)`s exceptions are available only in criminal cases, and they may only be triggered by the defendant. (Note also that they only permit introduction of evidence which concerns a pertinent trait of the defendant or victim.)
Term
List the factors that should be considered on the "unfair prejudice" side of the 403 balancing test.
 Definition
Source of the prejudice, its impact on the case, whether impact can be lessened.
Term
When impeaching a witness with a prior inconsistent statement, what procedural steps must the lawyer take?
 Definition
Rule 613 requires the lawyer to show the statement or disclose its contents to opposing counsel on request. Note: the lawyer must also have a good faith belief that the witness made the prior statement.
Term
To impeach with a prior felony conviction under Rule 609(a)(1), the judge must conduct a balancing test. Judges use a more specialized set of factors for this balancing. List the factors.
 Definition
Impeachment value of the former crime; recency of the prior conviction and whether it is part of a pattern; centrality of credibility; similarity between the prior crime and the charged crime; importance of getting the criminal defendant`s own testimony. (Note that the first three factors go to probative value, and the remaining two factors go to prejudice.)
Term
To block a witness`s character for truthfulness from being attacked with specific instances of conduct under Rule 608(b), what argument should the opposing counsel make?
 Definition
If the witness is a party, counsel should make a Rule 403 argument that the evidence is unfairly prejudicial. If the witness is NOT a party, counsel should make a Rule 611 argument that the evidence is too embarrassing or harassing.
Term
In order for statements to qualify as made during "plea discussions" under Rule 410, who normally must be present?
 Definition
A prosecutor.
Term
To impeach with a prior conviction under Rule 609(a)(2), must the judge conduct a balancing test?
 Definition
No. The prior conviction is automatically admissible.
Term
What are the requirements for impeaching a witness with a prior inconsistent statement AFTER the witness has left the witness stand?
 Definition
The witness must have an opportunity to explain or deny the statement, and opposing counsel must have an opportunity to examine the witness about it (unless justice requires otherwise). Also, in order to use extrinsic evidence, the matter must be noncollateral.
Term
State Rule 407`s prohibition on use of subsequent remedial measures.
 Definition
Under Rule 407, evidence of subsequent remedial measures is not admissible to prove negligence, culpable conduct, defect in a product or its design, or a need for warning or instruction.
Term
State Rule 409`s prohibition on the use of medical expenses.
 Definition
Under Rule 409, evidence of an offer to pay or payment of medical expenses resulting from an injury is not admissible to prove liability for the injury.
Term
List the factors that should be considered on the "probative value" side of the 403 balancing test.
 Definition
Strength, reliability, need (importance of proposition; availability of other evidence)
Term
Rule 410 does not contain an "other purposes" clause. Instead, it has two narrow exceptions. Describe those exceptions.
 Definition
(1) When necessary for completeness: Defendant introduced statement and another statement should “in fairness” be considered contemporaneously; and (2) In a subsequent perjury prosecution, but only if the statement was made under oath, on the record, with counsel present (i.e., in court).
Term
For impeachment purposes, when is a matter noncollateral?
 Definition
A matter is noncollateral (i.e., nontrivial) when it goes to a substantive issue in the case or also helps prove a separate impeaching point such as a witness`s bias or defect in perception.
Term
Rule 602 requires that a witness have personal knowledge. What are the two exceptions to that requirement?
 Definition
Expert witnesses and party admissions introduced under the hearsay exemption.
Term
Rule 411 permits evidence of liability insurance to be used for "another purpose." List the other purposes noted in Rule 411.
 Definition
Proving bias or prejudice, or proving agency, ownership, or control. Note: this list is nonexhaustive; for example, courts also admit evidence of insurance to prove motive.
Term
When a character witness is called to impeach a fact witness`s character for truthfulness, what form must the evidence take: opinion, reputation, and/or specific instances of conduct?
 Definition
It must be either opinion or reputation evidence. The character witness is not allowed to give specific examples.
Term
May a party use extrinsic evidence to prove that a witness has a defect in perception or memory?
 Definition
Yes.
Term
State Rule 411`s prohibition on the use of liability insurance.
 Definition
Under Rule 411, evidence that a person does or does not have liability insurance is not admissible to prove that the person acted negligently or wrongfully.
Term
State Rule 408`s prohibition on the use of compromise offers and negotiations.
 Definition
Under Rule 408, evidence of a compromise, an offer to compromise, or statements made during compromise negotiations are not admissible to prove the validity or amount of a disputed claim or to impeach by inconsistency.
Term
What is the "scope of direct" rule?
 Definition
Term
When a settlement offer or statements are made at a preliminary stage rather than during a formal settlement conference, the party seeking to introduce the evidence may argue that the protections of Rule 408 had not yet been triggered. What conditions are necessary to trigger the protection of Rule 408?
 Definition
Rule 408 is triggered only when there is a disputed claim and the parties are engaged in compromise negotiations.
Term
May a party impeach its own witness?
 Definition
Yes. (Rule 607)
Term
What is the "scope of direct" rule?
 Definition
The cross-examining lawyer may not go beyond the subject matter of the direct examination and matters affecting the witness`s credibility. (Rule 611)
Term
When character is an "essential element" of a claim or defense, what types of evidence may the proponent use to prove the character trait?
 Definition
Opinion, reputation, or specific instances. (Rule 405(b))
Term
Under Rule 404(a)`s exception for a homicide victim`s character, when may the prosecutor introduce evidence of the victim`s peaceful character?
 Definition
To rebut any evidence (character or fact evidence) that the victim was the first aggressor.
Term
Rule 609(b) has a different rule for impeachment with a prior conviction that is more than 10 years old. State the rule.
 Definition
The probative value, supported by specific facts and circumstances, must substantially outweigh the prejudice AND the proponent must give notice. (Note that this test strongly favors excluding the prior conviction.)
Term
On cross, may the court allow inquiry into matters that go beyond the scope of the direct examination?
 Definition
Yes, but the lawyer must proceed as if on direct examination (i.e., the lawyer may not use leading questions unless he or she would be permitted to do so on cross). (Rule 611)
Term
In the 404(b) "other purposes" analysis, the judge must balance under Rule 403. In general, what does the judge balance on each side?
 Definition
The judge balances the probative value of the other act for its nonpropensity purpose (e.g., intent or identity) against the danger of unfair prejudice that the jury will also use the evidence as proof of propensity (e.g., the "bad man" risk).
Term
Under Rule 404(a)`s exception for the victim`s character, the defendant may introduce evidence of a pertinent trait of the victim`s character. If he does so, what may the prosecution do in response?
 Definition
The prosecution may either (1) rebut the evidence by calling a character witness to offer opinion or reputation evidence about EITHER the victim or the defendant on the same trait; or (2) cross-examine the defendant`s character witness about relevant specific instances of the victim`s conduct.
Term
What type of evidence is covered by the rape shield rule`s prohibition?
 Definition
Evidence of the victim`s past sexual behavior or sexual predisposition. (Rule 412)
Term
Rule 407 permits evidence of subsequent remedial measures to be used for "another purpose." List the other purposes noted in Rule 407.
 Definition
Impeachment or -- if disputed -- proving ownership, control, or the feasibility of precautionary measures.
Term
State Rule 406`s rule on habit or routine practice.
 Definition
Evidence of a person`s habit or an organization`s routine practice may be admitted to prove that they acted in accordance with the habit or routine practice on a particular occasion
Term
List the 4 steps of a 404(b) "other purposes" analysis.
 Definition
(1) The evidence must be probative on a material issue other than propensity; (2) there must be sufficient evidence that the other act occurred; (3) the evidence must pass a 403 balancing; and (4) the court must give a limiting instruction if requested.
Term
List the factors that courts consider in determining whether conduct is a "habit" or a "propensity."
 Definition
(1) How specific the conduct is; (2) how distinctive the situation is; (3) how regularly it is done (i.e., how frequently and consistently); and (4) whether it lacks moral overtones.
Term
In a criminal case, if evidence meets an exception to the rape shield rule, what kind of balancing, if any, does the judge do?
 Definition
The judge uses regular Rule 403 to balances the probative value of the evidence against the danger of unfair prejudice and harm to the victim. (Rule 412)
Term
In order for Rule 412`s rape shield rule to apply, what type of case must it be?
 Definition
civil or criminal case involving sexual misconduct
Term
After a fact witness`s character for truthfulness has been attacked, the lawyer may rehabilitate the fact witness by calling a character witness to testify about the fact witness`s good character for truthfulness. On cross-examination of the character witness, the cross-examining lawyer may then ask the character witness about specific instances of the fact witness`s conduct. Describe the three limits on the cross-examining lawyer`s use of this impeachment tool.
 Definition
(1) The specific instances of conduct must be probative of untruthfulness; (2) the lawyer may not use extrinsic evidence to prove them; and (3) the questions may only be used as impeachment, (i.e., as proof that the character witness does not know the fact witness well enough). (Rule 608(b)(2))
Term
State Rule 404`s prohibition on character evidence.
 Definition
Evidence of a person`s character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character trait. (Note: a character trait is a propensity to act in a particular way.)
Term
In what types of civil cases is character an "essential element"?
 Definition
Defamation, negligent entrustment, child custody, and damages for loss of consortium or wrongful death. (Defamation and negligent entrustment come up most frequently.)
Term
May a party use extrinsic evidence to prove that a witness is biased?
 Definition
Yes.
Term
In determining whether a prior conviction is over 10 years old, does the court measure from the date of conviction or the date of release from prison?
 Definition
The court measures from the date of release from prison. (If no time was served, then the court measures from the date of conviction.) (Rule 609(b))
Term
To impeach with a prior felony conviction under Rule 609(a)(1), the judge must conduct a balancing test. State the balancing test that the court uses when the witness is NOT a criminal defendant.
 Definition
The court uses the regular Rule 403 test, under which the court may exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice. (Note that this test strongly favors admitting the prior conviction.)
Term
May the judge limit the presentation of evidence in order to protect witnesses from harassment or undue embarrassment?
 Definition
Yes. (Rule 611).
Term
State Rule 403.
 Definition
Evidence is admissible if its probative value substantially outweighs the unfair prejudice against the defendant.
Term
In a civil case, if evidence falls within the rape shield rule`s prohibition, under what circumstances may it be admitted?
 Definition
It may be admitted only if it meets a reverse 403: the judge must find that the probative value of the evidence substantially outweighs the danger of unfair prejudice and harm to the victim. Plus, the judge may admit evidence of reputation only if the victim placed it in controversy. (Rule 412)
Term
Under Rule 405(a), the prosecutor may cross-examine the defendant`s character witness about relevant specific instances of the defendant`s conduct. List the four important limits on this tool.
 Definition
(1) The cross-examining lawyer must have a good faith belief that the specific instance occurred; (2) the specific instance must be relevant to the character trait at issue; (3) the jury may use the evidence only to impeach the character witness (i.e., to show the character witness does not know the defendant well enough); and (4) extrinsic evidence may not be used to prove the specific instance.
Term
To spot nonhearsay statements in the "effect on listener" category, you should look for statements offered to prove the listener`s reaction to the statement. List 5 common examples.
 Definition
Statements offered to prove that the listener (1) had notice; (2) assumed the risk; (3) had a motive; (4) acted under duress; (5) acted reasonably in light of the statement.
Term
When may an expert describe the basis for his opinion on direct examination?
 Definition
Only if the underlying evidence is (1) otherwise admissible; or (2) meets a reverse 403: the probative value in helping the jury evaluate the expert`s opinion substantially outweighs the prejudice from the risk that the jury will also use the evidence substantively. (Note that on cross, the expert must describe his basis if asked.) (Rule 703 & 705)
Term
Under the attorney client privilege, if the defense removes relevant evidence from its location, what must defense counsel do?
 Definition
Within a reasonable time, the defense must turn over the evidence to the prosecutor and reveal where it was found.
Term
To spot nonhearsay statements in the "verbal acts" category, you should look for statements which have independent legal significance. List 3 common examples of statements having independent legal significance.
 Definition
(1) statements causing the formation or performance of a contract; (2) words of defamation; (3) words of gift.
Term
Lay and expert witnesses may testify to ultimate issues. What is the exception to this general rule?
 Definition
They may not testify in the exact language of the legal standard. (Rule 704)
Term
Under the attorney client privilege, what test is used to determine whether the communication was confidential?
 Definition
Whether the attorney and/or client took reasonable precautions.
Term
State the Daubert factors for assessing whether an expert`s opinion is the product of reliable principles and methods.
 Definition
Whether the theory (1) can be tested; (2) has been subjected to peer review and publication; (3) has a known error rate; (4) has standards controlling the technique`s operation; and (5) has been generally accepted by the relevant scientific community.
Term
State the rule on the admissibility of expert witness opinion testimony.
 Definition
The witness must (1) be qualified as an expert; and the testimony must (2) help the trier of fact (i.e., fit the case); (3) be based on sufficient facts or data; and (4) be reliable (based on reliable principles and be reliably applied). (Note: admission is subject to Rule 403, which is the 5th step in the "gatekeeping checklist.") (Rule 702)
Term
State the hearsay exemption for co-conspirator admissions. (801(d)(2)(E))
 Definition
(1) The declarant must have been the party`s co-conspirator; (2) the statement was during the course; (3) and in furtherance of the conspiracy; and (4) it must be offered against the party.
Term
State the rule on the admissibility of lay witness opinion testimony.
 Definition
The opinion must be (1) based on her perception; (2) helpful; and (3) not based on scientific, technical, or other specialized knowledge.
Term
To spot a Best Evidence Rule issue, what should you look for in the question?
 Definition
A witness testifying about what he read in a document, heard on a recording, or saw in a photograph.
Term
State the standard for authenticating an item of evidence.
 Definition
The proponent must produce evidence sufficient to support a finding that the item is what she claims it is. (Note: the judge uses the 104(b) screening standard.) (Rule 901)
Term
State the Confrontation Clause rule on use of hearsay. (Sixth Amendment)
 Definition
The Confrontation Clause bars admission of testimonial statements of a hearsay declarant who is not available for cross-examination at the trial unless (1) she was unavailable to testify and the defendant had a prior opportunity for cross-examination; OR (2) the statement falls within a Confrontation Clause exception (dying declaration or forfeiture by wrongdoing).
Term
State the hearsay rule.
 Definition
Hearsay is an out of court statement offered for the truth of the matter asserted. Hearsay is inadmissible unless it falls within an exception.
Term
Under the Best Evidence Rule, when is a duplicate admissible in lieu of the original?
 Definition
Almost always. A duplicate is excluded only if there is a genuine question raised about its authenticity or it would be unfair. (Rule 1003)
Term
List the five major nonhearsay categories (i.e., types of statements which are not offered for the truth of the matter asserted)
 Definition
(1) impeachment with prior inconsistent statement; (2) showing declarant`s knowledge; (3) effect on listener; (4) verbal acts (i.e., statements with independent legal significance); (5) circumstantial evidence of state of mind.
Term
What types of evidence may the expert base her opinion on?
 Definition
Evidence which (1) she has personal knowledge of; (2) were presented at trial; or (3) the expert has been made aware of IF it is of the type reasonably relied on by experts in the particular field. (Rule 703)
Term
State the hearsay exemption for employee or agent admissions. (801(d)(2)(D))
 Definition
(1) The declarant must have been the party`s employee or agent; (2) the statement was on a matter within the scope of that relationship; (3) the statement was made while the relationship existed; and (4) it must be offered against the party.
Term
State the requirements for the crime-fraud exception to the attorney client privilege.
 Definition
(1) The client must be committing or intending to commit a crime or fraud; and (2) the attorney-client communications must be in furtherance of the crime or fraud.
Term
List one excuse available under the Best Evidence Rule for not producing the original.
 Definition
When the originals were lost or destroyed without bad faith. (Rule 1004)
Term
State the requirements for the attorney client privilege.
 Definition
The privilege applies to confidential communications between a client and attorney made for the purpose of rendering legal advice or representation.
Term
To spot nonhearsay statements in the "circumstantial evidence of state of mind" category, you should look for statements in what 2 types of cases?
 Definition
Cases involving (1) the declarant`s competency; (2) child custody and other relationships (wrongful death; loss of consortium).
Term
State the Best Evidence Rule.
 Definition
To prove the CONTENT of a writing, recording, or photograph, the original is required. (Tip: ask how the witness knows about the event: from his own knowledge of it or from what he read, heard, or saw in a writing, recording, or photo?) (Rule 1002)
Term
State the residual hearsay exception.
 Definition
The statement must (1) have equivalent guarantees of trustworthiness; (2) relate to a material fact; (3) be more probative than other evidence; and (4) serve the interests of justice. The proponent must (5) give reasonable advance notice.
Term
State the rule on impeaching a hearsay declarant.
 Definition
A hearsay declarant may be impeached just as if he had testified as a live witness. (Note: when impeaching a hearsay declarant with a prior inconsistent statement, the declarant need not be given an opportunity to explain or deny.)
Term
State the requirements for the marital confidences privilege and identify who holds the privilege.
 Definition
The statement must have been (1) a confidential communication; (2) made during the marriage. Both spouses hold the privilege. (Note: this privilege shields ONLY the confidential communications, but applies in civil and criminal cases and continues after the marriage ends.)
Term
Under Rule 405(a), the prosecutor may cross-examine the defendant`s character witness about relevant specific instances of the defendant`s conduct. List the four important limits on this tool
 Definition
(1) The cross-examining lawyer must have a good faith belief that the specific instance occurred; (2) the specific instance must be relevant to the character trait at issue; (3) the jury may use the evidence only to impeach the character witness (i.e., to show the character witness does not know the defendant well enough); and (4) extrinsic evidence may not be used to prove the specific instance.
Term
Describe the test for whether a statement is "testimonial" for purposes of the Confrontation Clause.
 Definition
A statement is testimonial if a reasonable person would have understood the primary purpose of the interrogation was to prove past events potentially relevant to criminal prosecution. (Compare: statements made during an ongoing emergency are not testimonial.)
Term
What are the three exceptions in the rape shield rule for criminal cases?
 Definition
(1) Specific instances of the victim`s sexual behavior to show someone else was the source of physical evidence; (2) specific instances of the victim`s sexual behavior with the defendant to show consent; and (3) evidence so strong that the Constitution requires admission (usually specific instances to show the victim has a motive to lie). (Rule 412)
Term
State the test for whether conduct constitutes a "statement" for purposes of the hearsay rule.
 Definition
For conduct to be a statement, the actor must have intended to communicate something.
Term
To spot a Confrontation Clause issue, what should you look for?
 Definition
A prosecutor seeking to admit a hearsay statement which was made to or for police, a 911 operator, or in a lab report. (Note: statements made by private parties or the defendant are not testimonial.)
Term
Under the attorney client privilege, when a corporation is the client, what additional requirement must be met for an employee`s communications to be covered?
 Definition
The communications must have concerned matters within the scope of the employee`s duties.
Term
Excited utterance issue spotting
 Definition
Out of court statement made by a declarant under stress during a startling event.
Term
Describe the two elements of present sense impression. (803(1))
 Definition
1. Statement describes an event. 2. Was made while perceiving event or immediately thereafter.
Term
Describe the three elements for excited utterance. (803(2))
 Definition
1. Startling event; 2. Statement related to the event; and 3. Declarant spoke while under the stress of excitement caused by the event.
Term
Describe the state of mind exception (803(3))
 Definition
1. Statement if of the declarant's then-existing state of mind (e.g. motive, intent, plan, etc.) or emotional sensory, or phycial condition (e.g., mental feeling, pain, bodily health etc.) BUT must not be offered to prove a fact remembered or believed. Unless it is about the declarant's own will. (803(3))
Term
What are the three key limitations of the state of mind rule (803(3))?
 Definition

1. Timing - Can only use the statement as evidence of the delcarant's then-existing state of mind. 

2. Scope - Can only use the statement as evidence of the declarant's state of mind, not other facts. 

3. Relevance - You must be able to show how the declarant's state of mind is relevant to the case. 
Term
What are some examples of "fact remembered or believed" in an 803(3) analysis?
 Definition
"I'm hungry...because I had only salad for lunch."; "My foot hurts... because Joan dropped a block on it."; I have pain in my chest ... but my boss won't let me go home."
Term
What are the three requirements in 803(8) (Public records)?
 Definition
1. Public record 2. Must set out either (a) the office's activites (i.e. internal matters) OR (b) matter observed by a public employee in an authorized report; OR factual findings from an authorized investigation. 3. The opponent does not show lack of trustworthiness.
Term
What are examples of records about internal matters at the agency (public records (803(8)))?
 Definition
  • Offical decision (court judgments, legislative votes) 
  • Housekeeping records (budget, personnel records, receipts) 
Term
What are "matters observed" in a public records analysis?
 Definition
Records describing matters observed as part of a public employee's job duties. E.g. rainfall amount and description of crime scene.
Term
What is the use restriction on matters observed?
 Definition
Must exclude if it is a criminal case and the matter was observed by law enforcement personnel [unless ministerial]. Law enforcement includes anyone aligned with the prosecution (lab techs, customer officers)
Term
What are factual findings?
 Definition
Records with factual findings from a legally authorized investigation; including opinions and conslusions. E.g. JAG report finding and EEOC report finding company discriminated.
Term
What is the use restriction on factual findings?
 Definition
Must exclude if it is offered against the defendant in a criminal case.
Term
What are the four factors of trustworthiness?
 Definition
  1. How timely was the investigation?
  2. Did the official conducting the investigation have special skill or experience?
  3. Did the agency hold a hearing before issuing its report?
  4. Did the agency or the official have any improper motive (e.g., bias, concern that the agency might be involved in the litigation?) 
Term
What are the four categories of hearsay exceptions?
 Definition
  1. Rule 801(d): "Not" Hearsay
  2. Rule 803: Availability Immaterial 
  3. Rule 804: Declarant Not Available 
  4. Rule 807: Residual Exception  
Term
What is the rule structure for the 804 exception?
 Definition
  1. Step one: Determine if declarant is "unavailable." (804(a)) contains the criteria for being unavailable)
  2. Step two: Establish whether an exception applies. (804(b) contains 5 exceptions, all of which require you to show that the declarant is unavailable)
Term
What are the five categories of unavailability in 804(a)?
 Definition
  1. Privilege 
  2. Refusal to testify 
  3. Lack of memory 
  4. Death or [severe] illness
  5. Unavoidable absence 
Term
What are the five elements of Former Testimony (804(b)(1))?
 Definition
  1. Declarant is unavailable 
  2. Prior statement was given at trial, hearing, or deposition
  3. Opponent was a party to the prior proceeding (or if it was a civil case, his predecessor was a party)
  4. Opponent [predecessor] had opportunity to develop testimony in the prior proceeding 
  5. Opponent had similar motive to develop testimony in the prior proceeding 
Term
What does a "predecessor" (Former Testimony (804(b)(1))) turn on?
 Definition
Whether previous party had a similar motive
Term
What does opportunity to develop testimony mean?
 Definition
An opportunity to cross
Term
What are the three elements for Statements for Medical Diagnosis or Treatment (803(4))?
 Definition
  1. Statement was made for medical diagnosis or treatment (i.e. was declarant seeking medical help?) 
  2. Statement was reasonably pertinent to medical diagnosis or treatment (i.e. was it useful to caregiver?)
  3. Statement describes medical history, past or present symptoms or sensations, or their inception or general cause
Term
What is the first category of hearsay exceptions?
 Definition

Rule 801(d): "Not" Hearsay

Covers statements that are within the definition of hearsay, but are exempted from hearsay rule 
Term
What are the two sets of hearsay exceptions in 801(d)?
 Definition
  1. Prior statements of a testifying witness 
  2. Statements by an opposing party 
Term
What is the second category of hearsay exceptions?
 Definition

Rule 803: Availability Immaterial 

You may use these exceptions even if the declarant is available to testify. Proponent can choose to call the declarant or to use her hearsay statement instead. 
Term
What is third category of hearsay exceptions?
 Definition

Rule 804: Delcarant Not Available

You must show that the declarant is unavailable to ttestify as a prerequisite to suing an exception in 804. 
Term
What are the five elements for Prior Inconsistent Statements (801(d)(1)(A))?
 Definition
  1. Declarant testifies at the current trial 
  2. Decalrant/witness is subject to cross at the current trial 
  3. Prior statament is inconsistent with courtroom testimony 
  4. Prior statement given under penalty of perjury
  5. Prior statement given during proceeding 
Term
What constitutes a "proceeding" for purposes of Inconsistent Statements?
 Definition
Trial, deposition, or grand jury
Term
What are the four factors for Prior Consistent Statements (801(d)(1)(B))?
 Definition
  1. Declarant testifies at the current trial
  2. Declarant/witness is subject to cross at the current trial 
  3. Prior statement is consistent with courtroom testimony 
  4. Statement is offered to rebut charge of fabrication AND the prior statement made before motive to lie arose; OR to rehabilitate the declarant's credibility when attacked on any other ground (e.g., inconsistency or faulty memory) 
Term
What are the three elemenets of Prior Identifications (801(d)(1)(C))?
 Definition
  1. Declarant testifies at the current trial 
  2. Declarant/witness is subject to cross at the current trial 
  3. Prior statement identified a person as someone the declarant perceived earlier (usually visual, but can be based on voice) 
Term
State the hearsay exemption for employee or agent admissions.
 Definition
(1) The declarant must have been the party`s employee or agent; (2) the statement was on a matter within the scope of that relationship; (3) the statement was made while the relationship existed; and (4) it must be offered against the party.
Term
List the 4 steps of a 404(b) "other purposes" analysis
 Definition
(1) The evidence must be probative on a material issue other than propensity; (2) there must be sufficient evidence that the other act occurred; (3) the evidence must pass a 403 balancing; and (4) the court must give a limiting instruction if requested.
Term
State the requirements for the spousal testimonial privilege and identify who holds the privilege.
 Definition
(1) It must be a criminal case; and (2) the witness and the party must be currently married. The witness-spouse holds the privilege. (Note: this privilege shields ALL testimony.)
Term
What is the dying delcaration exception? (804(b)(2))
 Definition
  1. Declarant is unavilable 
  2. Applies only to homicide prosecutions and civil proceedings 
  3. Declarant subjectively believed death was imminent 
  4. Statement concerns cause or circumstances of death 
Term
What is the statement against interest exception? (804(b)(3)(A))?
 Definition
  1. Declarant is unavailable 
  2. Statement was against interest at the time it was made 
  3. Corroboration for statements against penal interest when offered in criminal case 
Term
What is rule 801(d)(2)(C)?
 Definition
A statement offered against an opposing party AND was made by a person whom the party authorized to make the statement
Term
What is the past recollection recorded exception? (803(5))
 Definition
  1. Statement is in a record 
  2. Witness has forgotten 
  3. Witness made or adopted that record 
  4. Witness once had personal knowledge 
  5. Witness made or adopted the record when that knowledge was fresh 
  6. Witness testifies that the information was accurate 
  7. Declarant MUST TESTIFY to use this exception!
Term
Describe multiple hearsay (805)
 Definition
If there is hearsay within hearsay, then each level of hearsay must qualify under an exception
Term
What are the seven elements for the business records exception? (803(6))
 Definition
  1. Business record 
  2. The source of the information was an insider with knowledge 
  3. The record was made at or near the time 
  4. In the course of a regularly conducted activity of business 
  5. It was the business's regular practice to make this kind of record 
  6. There is a foundation witness or certification 
  7. Opponent does not show lack of trustworthiness 
Term
What is an "insider" for purposes of the Business Records exception? (803(6))
 Definition
Employees of the business
Term
What is an "insider" for purposes of the Business Records exception? (803(6))
 Definition
Employees of the business
Term
What is the standard for statements against interest?
 Definition
Objective: no reasonable person would have made the statement unless it was true
Term
What is the Forfeiture exception? (804(b)(6))
 Definition
  1. Declarant is unavailable 
  2. Other party engaged or acquiesced in wrongdoing 
  3. Intended to cause him to be unavailable to testify as a witness 
  4. Wrongdoing caused unavailability (but for cause) 
Term
What is the individual exepmtion? (801(d)(2)(A))
 Definition
  1. Statement was made by a party 
  2. Statement is offered against the party 
Term
What is the adoptive exemption (801(d)(2)(B))?
 Definition
  1. The party manifested that it adopted or believed the statement; and 
  2. Statement is offered against the party 
Term
What is the authorized exemption? (801(d)(2)(C))
 Definition
  1. The party authorized the declarant to make a statement on that subject (e.g., real estate broker, author of reference letter)
  2. Statement is offered against the party 
Term
What is the Bruton rule under the Confrontation Clause?
 Definition
 A defendant's confrontation clause rights are violated when a non-testifying codefendant's confession naming the defendant as a participant in the crime is introduced at their joint trial. 
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