Foundation
Under Rule 401, Evidence is relevant if...?
Evidence is relevant if:
(1) it has any tendency to make a fact more or less probable, and
(2) the fact is of consequence in determining the action
Evidence is relevant if:
(Hint: 2 parts of Rule 401)
Evidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.
To testify, a witness must (1) be competent (Rules 601, 605, 606), (2) have personal knowledge (Rule 602), and (3)...?
A witness must take an oath or affirmation.
FRE 603
Under Rule 608(b), the court may, on cross-examination, allow a party to ask a witness about specific instances of conduct to impeach, given that the attorney asking has a...?
Good faith belief
Under Rule 404(a)(1), character evidence is not admissible to prove what?
Character evidence is not admissible to prove propensity.
Fill in the blank:
[ ] requires the jury to draw an inference connecting it to a disputed fact.
Circumstantial evidence
Rule 410 (Criminal Plea Bargaining) shields two kinds of pleas, but there is one kind that it does not protect. Name all three.
Rule 410 shields (1) nolo contendere pleas and (2) withdrawn guilty pleas
It does not shield guilty pleas that are entered or accepted.
Counsel: Why did the other driver speed up right before the crash?
Opposing Counsel: Objection - ?
Court: Sustained. The witness can testify to what she saw, not to what was in the other driver's head.
What would be grounds for objection here?
Calls for speculation.
(A 602 problem because it asks the witness to go beyond what they perceived)
Define "extrinsic evidence" and "collateral matter."
Extrinsic evidence is any evidence other than testimony from the witness currently on the stand.
Collateral matter is a fact that does not independently prove a fact of consequence and is relevant solely because it impeaches.
The "mercy rule" of Rule 404(a)(2) creates an exception to the propensity bar in criminal cases. Which party gets to open the door to character evidence first, and what must the trait be for it to qualify?
The defendant opens the door and offers evidence of their own pertinent trait
What are the three witness types?
(1) Fact witnesses (perceived facts relevant to the case)
(2) Expert witnesses (have specialized knowledge to interpret or explain facts)
(3) Character witnesses (have information about good/bad character of a party/witness-FRE limit these)
A plaintiff sued a defendant, alleging that she was seriously injured when the defendant ran a red light and struck her while she was walking in a crosswalk. During the defendant's case, a witness testified that the plaintiff had told him that she was "barely touched" by the defendant's car.
On cross-examination, should the court allow the plaintiff to elicit from the witness the fact that he is an adjuster for the defendant's insurance company? (Rule 411)
Yes. Under Rule 411, evidence of liability insurance is admissible for ANY purpose other than proving negligence or other fault, so long as it is relevant.
What are the four contexts where leading is permitted on direct?
(1) Preliminary/pedigree matters (undisputed background and foundation points, like name, occupation, education)
(2) Directing the witness to a specific place or time (leading is fine to steer the witness to a new chapter of testimony)
(3) A hesitant, confused, or forgetful witness (witnesses who struggle to testify like young children, victims of physical or sexual abuse, the ill, or the elderly)
(4) Hostile witnesses, adverse parties, or witnesses identified with an adverse party (when the witness is likely to resist the questioning party)
Tom is on trial for bank robbery. He takes the stand to testify in his own defense. To impeach him, the prosecution offers his four-year-old felony conviction for bank robbery. Is this admissible to impeach Tom?
No, because its probative value is low and its prejudicial effect is high. The crime says little about Tom's character for truthfulness or untruthfulness, but the fact that the crime is the same as the charged crime here makes the evidence of the conviction highly prejudicial.
FRE 609(a)(1)(B) (PV must outweigh prejudice)
A woman sued her ex-boyfriend for libel. After the woman testified that the ex-boyfriend wrote to the woman's employer that she was a thief, the ex-boyfriend offered evidence that the woman once stole money from a former employer.
Is the evidence of the prior theft admissible.
Yes, because the character is an essential element of the crime of libel, a form of defamation.
FRE 405(b)
Define "unfairness" in the context of Rule 403.
"Unfairness" means the evidence tempts the jury to decide the case on grounds different from those the law demands.
A woman is suing a pilot for injuries in the crash of a small airplane, alleging that the pilot owned the plane and negligently failed to have it properly maintained. The pilot has asserted in defense that he never owned the plane or had any responsibility to maintain it.
At trial, the woman calls a witness to testify that he had sold to the pilot a liability insurance policy on the plane.
Under Rule 411 (liability insurance), is the witness's testimony admissible?
Yes. Evidence of liability insurance is admissible for the purpose of proving ownership.
(411 only bars liability insurance to prove negligence or wrongdoing)
Under Rule 612(b), when a writing is being used to refresh a witness's memory, the adverse party is entitled to what?
The adverse party is entitled to have the writing produced, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness's testimony.
Is the pastor's testimony admissible? Why?
No, because evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked.
FRE 608(a)
A defendant has been charged with murder. At trial, the defendant testified that he and the victim were discussing politics when the victim became enraged and lunged at him with a knife. The defendant further testified that he feared for his life and had no choice but to kill the victim. On rebuttal, the prosecution seeks to call a witness to testify that the victim had a reputation in the community as a peaceful and nonviolent person.
Is the witness's testimony admissible?
Yes, because the defendant testified that the victim was the first aggressor.
FRE 404(a)(2)(C)
What are the three tactical advantages to a motion in limine?
(1) It lets you plan your strategy knowing what's in or out before opening;
(2) It allows lengthy, written, sophisticated arguments; and
(3) It avoids in-trial objections that make jurors jump to conclusions
Rule 408 normally shields settlement statements, but Rule 408(a)(2) creates an exception: statements made during civil compromise negotiations can later be used in a criminal case... but only when those negotiations involved a claim by this kind of entity, exercising this kind of authority.
A public office acting in its regulatory, investigative, or enforcement (quasi-criminal) authority.
What is the 5-step method for refreshing a witness's memory?
(1) Establish that the witness does not recall the answer
(2) Describe the writing to be used and ask if it would refresh recollection
(3) Show the writing to the witness
(4) Ask whether it refreshed recollection/helped them remember
(5) Before or during, give opposing counsel a copy of the writing
Under Rule 613(b), before extrinsic evidence of a prior inconsistent statement is brought in, a witness must be given what?
It is admissible only if the witness is given an opportunity to explain or deny it, and the adverse party may examine the witness about it.
Two parts:
(1) Define habit under Rule 406.
(2) What is the organizational equivalent of a habit?
(1) A habit is a specified, repeated response to a particular situation or stimulus.
(2) Routine practice is the organizational equivalent of habit.