Evidence Essay Writing Workshop - Key Concepts

Flashcards providing question-and-answer review of the major Evidence rules and essay-writing points discussed in Prof. Ide-Don’s workshop.

What does FRE 401 require for evidence to be logically relevant?

It must have any tendency to make a fact of consequence more or less probable than it would be without the evidence.

Under FRE 403, when can logically relevant evidence be excluded?

When its probative value is substantially outweighed by dangers such as unfair prejudice, confusion, misleading the jury, undue delay, waste of time, or needless cumulative evidence.

In a civil case, when is character evidence admissible to prove conduct?

Only when character is an essential element of a claim or defense (e.g., defamation, negligent hiring/entrustment, child-custody).

What is the general rule about prosecution use of bad-character evidence against a criminal defendant?

The prosecution may not introduce evidence of the defendant’s bad character to prove propensity to commit the charged crime.

How may a criminal defendant introduce evidence of his own character?

By reputation or opinion testimony showing a character trait inconsistent with the crime charged.

If a defendant ‘opens the door’ with good-character evidence, what may the prosecution do?

Rebut with reputation or opinion testimony or cross-examine the character witness about the defendant’s reputation, opinion, or specific bad acts (no extrinsic evidence on those acts).

When can a criminal defendant introduce evidence of a victim’s character?

By reputation or opinion testimony when the trait is relevant to the defense asserted, such as the victim’s violence in a self-defense case.

What is the MIMIC rule for specific bad-acts evidence under FRE 404(b)?

Prior acts may be offered for Motive, Intent, absence of Mistake, Identity (including modus operandi), or Common plan/Preparation—not to show propensity.

What is habit evidence under FRE 406?

Evidence of a person’s routine response to a specific situation that may be admitted to show conduct in conformity with that habit on a particular occasion.

Under FRE 412, when is evidence of a victim’s sexual history generally inadmissible?

In civil or criminal sexual-misconduct cases, unless a civil court finds the probative value substantially outweighs unfair prejudice and harm.

What two things must a lay witness possess to be competent under FRE 601?

Personal knowledge of the matter and an ability to understand/communicate truthfully.

What three requirements make a lay opinion admissible under FRE 701?

It is (1) rationally based on the witness’s perception, (2) helpful to understanding the testimony or determining a fact, and (3) not based on specialized knowledge.

List the foundational requirements for expert testimony under FRE 702/703.

Qualified expert; scientific/technical/specialized knowledge that will help the trier of fact; testimony based on sufficient facts or data; product of reliable principles and methods; reliable application to the case.

What is ‘present recollection refreshed’ under FRE 612?

A witness may look at any item to jog memory, then testify from refreshed memory; the item itself is not evidence unless an adverse party offers it.

State the elements of the past-recollection-recorded exception (FRE 803(5)).

Record made/adopted when memory was fresh, accurately reflects knowledge, witness now lacks sufficient memory, and the record is read into evidence (exhibit only if offered by opponent).

Name five common impeachment methods.

1) Character for truthfulness (reputation/opinion), 2) criminal convictions, 3) prior inconsistent statements, 4) bias or interest, 5) sensory or mental defects.

When can reputation or opinion evidence bolstering a witness’s truthfulness be introduced?

Only after the witness’s character for truthfulness has been attacked.

How are convictions for crimes involving dishonesty/false statement treated under FRE 609?

Extrinsic evidence must be admitted to impeach any witness, regardless of punishment, subject only to the 10-year rule.

What balancing test applies to felonies not involving dishonesty when offered against a criminal defendant?

They are admissible only if probative value outweighs prejudicial effect to the defendant.

What is the 10-year rule for convictions under FRE 609(b)?

If more than 10 years have passed since conviction or release, evidence is admissible only if its probative value substantially outweighs prejudicial effect and advance notice is given.

Under FRE 613, how may a witness be impeached with a prior inconsistent statement?

By confronting the witness with the statement; extrinsic evidence is allowed if the witness has an opportunity to explain or deny (unless justice requires otherwise).

What must be shown to use extrinsic evidence of bias for impeachment?

A foundation establishing the witness’s bias or interest; extrinsic evidence is permissible.

How can a hearsay declarant be impeached under FRE 806?

By any evidence that would have been admissible if the declarant had testified, including inconsistent statements and criminal convictions.

List three ways to rehabilitate a witness after impeachment.

1) Explanation/clarification on redirect, 2) reputation or opinion evidence of truthfulness, 3) prior consistent statements.

What is required to authenticate tangible evidence under FRE 901?

Sufficient evidence for a reasonable jury to find that the item is what the proponent claims it is.

State the Best Evidence Rule (FRE 1002) in one sentence.

To prove the contents of a writing, recording, or photograph, the original—or a reliable duplicate—must be produced unless an exception applies.

Who holds the spousal testimonial privilege and what does it cover?

The testifying spouse holds it and may refuse to testify against the other spouse about anything, but it applies only during a valid marriage.

What communications are protected by the confidential marital communications privilege?

Confidential statements made between spouses during marriage; both spouses may refuse disclosure even after the marriage ends.

When may evidence of subsequent remedial measures be admitted under FRE 407?

To prove ownership, control, or feasibility of precautions, or for impeachment—not to prove negligence or culpable conduct.

Under FRE 408, what must exist for settlement negotiations to be excluded?

A dispute about validity or amount of a claim; the exclusion applies even before litigation is filed.

What does FRE 409 exclude?

Offers to pay medical or similar expenses when offered to prove liability.

For what purposes is liability-insurance evidence admissible under FRE 411?

To prove agency, ownership, control, or witness bias—not to prove negligence or wrongful conduct.

Define hearsay under FRE 801(c).

An out-of-court statement offered to prove the truth of the matter asserted.

Give two examples of non-hearsay uses of statements.

1) Effect on the listener/reader (notice), 2) Circumstantial evidence of the declarant’s state of mind.

What is ‘assertive conduct’ in hearsay analysis?

Non-verbal conduct intended as an assertion, such as nodding ‘yes,’ which is treated as a statement under FRE 801.

Explain the rule on double hearsay (FRE 805).

Each layer of hearsay must independently satisfy a hearsay exception or exemption.

Name three types of opposing-party statements that are non-hearsay under FRE 801(d)(2).

1) Party’s own statement, 2) adoptive admission, 3) vicarious statement (e.g., by an employee within scope and during employment).

When is a prior inconsistent statement non-hearsay under FRE 801(d)(1)(A)?

When given under oath at a prior proceeding or deposition and offered to prove its truth.

What are the requirements for the prior-identification non-hearsay exemption?

Declarant testifies and is subject to cross-examination about the prior identification of a person after perceiving him.

List the three exceptions requiring the declarant to be unavailable (FRE 804) most commonly tested.

1) Former testimony, 2) dying declaration, 3) statement against interest.

What are the elements of a dying declaration?

Made while believing death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death; admissible in homicide prosecutions and civil cases.

What makes a statement ‘against interest’ under FRE 804(b)(3)?

It was against the declarant’s proprietary, pecuniary, or penal interest at the time made and a reasonable person would not have made it unless true.

Define the present-sense-impression exception.

A statement describing or explaining an event or condition made while the declarant was perceiving it or immediately thereafter.

What distinguishes an excited utterance from a present sense impression?

It is made under the stress of excitement caused by a startling event, rather than merely contemporaneous description.

When is a statement admissible for medical diagnosis or treatment?

When made for such purposes and describes medical history, symptoms, or their cause insofar as reasonably pertinent to diagnosis or treatment.

What must be shown to admit a recorded recollection under FRE 803(5)?

Witness once knew but cannot now recall well enough; record made/adopted when fresh; accurately reflects knowledge; it is read into evidence.

State the basic requirements of the business-records exception (FRE 803(6)).

Record kept in regular course of business, made at or near the time by someone with knowledge, and authenticated by custodian or qualified witness; opponent must show lack of trustworthiness to exclude.

When are public records admissible under FRE 803(8)?

Records of public office activities, matters observed under legal duty (except law-enforcement reports in criminal cases against the accused), or factual findings from legally authorized investigations, unless untrustworthy.

How may a learned treatise be used at trial under FRE 803(18)?

As substantive evidence if relied upon by an expert on direct or called to the attention of an expert on cross; read to the jury, not received as an exhibit.

What does FRE 803(22) allow regarding prior criminal judgments?

Evidence of a final judgment of conviction for a crime punishable by death or imprisonment over a year to prove any fact essential to the judgment.

State the two-prong test of the Sixth Amendment Confrontation Clause for testimonial hearsay.

Out-of-court testimonial statements are inadmissible against a criminal defendant unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine.

When are statements to police considered non-testimonial under Davis v. Washington?

When their primary purpose is to enable police to meet an ongoing emergency.

Does the Confrontation Clause bar statements admitted for a non-truth purpose?

No. If a statement is offered for something other than its truth (e.g., state of mind), the Clause does not apply.