Relevance
Explain the difference between direct evidence and cumulative evidence
Direct evidence if true, necessarily establishes the point for which offered.
Cumulative evidence if true, can lead to an inference to establish the point for which offered. **Most relevant issues involve this type of evidence**
True or False. Homicide victim's peacefulness may be offered by prosecutor to rebut first aggressor evidence.
True
What are the 3 methods of non-character impeachment?
Impeachment by evidence of bias
Impeachment by Contradiction
Impeachment by Prior Inconsistent Statement
What are the two types of examination and what kind of questions can be asked in both types?
Direct and Non-leading questions
Cross and Leading questions
What 5 FRE's govern these exclusions?
407 408 409 410 411
What are the risks that must be weighed when doing a 403 analysis?
1. Unfair prejudice
2. Confusing the issues
3. Misleading the jury
4. Undue delay
5. Wasting time
6. Needlessly presenting cumulative evidence
Under FRE 404(b) when would a crime, wrong, or other act be admissible to prove a person's character?
This evidence may be admissible for another purpose, such as proving motive, opportunity intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
And must meet 403 analysis as well.
What are the guidelines to using evidence of Prior Convictions to impeach?
-Only allowed to impeach
-Witness must testify to trigger admissibility
-Only show character for untruthfulness
-Based on the offense's severity and elements
-Must satisfy the time bar
What FRE governs the competency of a witness and can the mental processes of a jury be shared in a testimony?
Rule 606 and a jury may not testify about any statements made during deliberation or the effect of anything to another jury's vote; the mental processes of the jury during the vote.
On what basis can a court admit evidence of a person was or was not insured against liability under FRE 411?
For another purpose besides negligent or wrongful acts, such as proving a witness's bias or prejudice or proving ownership, agency, or control.
What are the four inferences to address when analyzing flight?
Is action flight/attempt thereof?
Motivated by a consciousness of guilt?
Consciousness of guilt of charged offense?
Consciousness of guilt of charged offense raises the chance that D committed the charged offense?
If yes to all, then admissible.
Defendant is charged with sexual assault of Victim in a park. Defendant admits having had a sexual encounter with Victim but claims it was consensual. Defendant argues that Victim is claiming assault as a means of explaining to Victim’s spouse fresh bruising and scratches on Victim’s back which occurred during their encounter.
To corroborate this argument, Defendant seeks to call Witness to testify to also having had a consensual sexual encounter with Victim in the park a year earlier that left bruising and scratches on Victim’s back.
The prosecution objects that this is inadmissible evidence.
How should the judge rule?
Exclude Witness’s testimony because it is evidence of other sexual behavior or predisposition.
This is inadmissible evidence of sexual behavior (i.e., Victim’s sexual behavior) with someone other than the defendant that is excluded under FRE 412(a)(1).
Crimes punishable over 1 year of imprisonment/death
Crimes whose elements need proof of dishonest act or false statement
Time bar (for all witnesses' convictions): Its admissible if its less than or equal to 10 years old from conviction or release.
May be admissible if older than 10 years and probative value substantially outweighs prejudicial effect and advance notice given.
In Pena-Rodriguez v. Colorado, what was the standard to determine whether a statement was overly prejudicial?
The statement must show that racial animus is the significant motivating factor in deciding the verdict.
After an argument about overtime pay, Cleon fired his secretary Fiona. Fiona called Cleon a few hours later and said that she had spoken to an attorney and that she intended to sue Cleon and the company for breach of contract. Cleon apologized over the phone and said that he had lost his temper. He then typed out a letter admitting that it was wrong to fire her, and offering to re-hire her and to pay her the overtime she had asked for. He then scanned the letter into his computer and sent her the letter attached to an e-mail.
Fiona rejected his offer and sued Cleon, arguing that firing her and refusing to pay her overtime was a breach of their employment contract. She seeks to admit the letter as evidence that it was wrong for Cleon to fire her and that she deserved the overtime payments. The letter is:
Admissible.
The letter is exempted from the hearsay rule because it is a statement made by a party-opponent. Although Rule 408 does bar settlement offers, it only applies to a “disputed claim.” At the time that Cleon wrote the letter, he did not dispute anything that Fiona was alleging—in fact, he conceded that she should be re-hired and that she deserved the overtime payments. Thus, Rule 408 does not apply. Although Rule 1002 requires “an original writing,” Rule 1003 makes it clear that a “duplicate is admissible to the same extent as the original” unless there is a genuine question about the original’s authenticity or it would otherwise be unfair to admit the duplicate.
Defendant is charged with armed robbery and being a felon in possession of a firearm (in the robbery) and offers to stipulate that he had a prior felony conviction at the time of the alleged robbery. The defendant’s prior felony conviction was for armed robbery.
The prosecution refuses to stipulate and seeks to prove that the defendant had previously been convicted of the felony of armed robbery, the facts of the conviction, and the sentence the defendant received. The defendant objects.
What should the judge do?
Holding from US. v. Old Chief
Bar the prosecution from proving anything about the prior conviction and instruct the jury that the defendant concedes he had a prior felony conviction at the time of the alleged robbery.
While each side may prove its case, and the defendant may not ordinarily stipulate away the elements of the prosecution’s case, when a defendant’s legal status as a felon is an element of the crime, the risk of unfair prejudice from the felony’s name must be weighed under Rule 403 against that of alternative means of proof with less risk of unfair prejudice such as an admission, and the name of any felony likely to support a conviction on an improper ground will substantially outweigh the probative value of admission.
Decedent dies in a plane crash, and her estate sues Defendant airline for negligent maintenance. The estate claims the crash occurred because the autopilot failed as it was not replaced as part of regular maintenance. There is no direct evidence concerning the autopilot in the wreckage.
Defendant airline contends timely replacement of the autopilot was made the year before the accident, according to its routine maintenance practices. To prove that the autopilot was replaced on schedule, the airline offers its Maintenance Chief, who will testify that “the autopilot is replaced every five years of a plane’s life, without exception, with a brand new one,” and that the plane which crashed had been in service six years. Plaintiff estate objects that this testimony is inadmissible.
How should the judge rule?
Admit the testimony and allow the jury to conclude from it what maintenance was done to the plane that crashed.
The Chief of Maintenance's testimony is offered as routine practice of an organization, the "habit" evidence of an entity, admissible under FRE 406.
What is impeachment by contradiction and how do you accomplish this?
It is to show the state of the world differs from the witness's account.
Accomplish by cross examining witness, so he/she admits or offering extrinsic proof (MUST HAVE RELEVANCE beyond contradiction)
What are the exceptions in which a jury can testify under FRE 606?
A jury may testify about whether:
1) extraneous prejudicial information was improperly brought to the jury's attention
2) an outside influence was improperly brought to bear on any juror or
3) a mistake was made in entering the verdict on the verdict form
Defendant is on trial for his involvement in a bank robbery. During the investigation of the case, Defendant was questioned by the police after waiving his Miranda rights. During that interrogation, the police told Defendant that they would make a favorable recommendation to the prosecutor if Defendant “came clean” and told them about his involvement in the robbery.
Defendant told the police, “I would like to help you. I was only a small fish. But if I tell you anything the others will make real trouble for me.” At trial the prosecution wants to offer Defendant’s pre-trial statement to help establish his involvement in the robbery. Defense objects.
How should the judge rule?
Overrule the objection because Defendant’s statements were not part of plea discussions.
Rule 410 provides broad protections to criminal defendants for statements they make during plea negotiations, but these do not qualify as plea negotiations because the rule requires that these be with the prosecuting authority, not a police officer.
Jane sues American Motors, which manufactured her car, claiming breach of the implied warranty of merchantability (that the car is suitable for its intended use) because the car's engine failed after two years and 20,000 miles. American Motors defends that the engine failed because Jane did not follow its recommendation to change the oil every six months or 5,000 miles.
Jane offers testimony from her friend John that he bought a car at the same time as she did, although made by a different manufacturer, that he never changed its oil, and that his car's engine had not failed after five years and 50,000 miles. American Motors objects that this evidence is not relevant.
With respect only to the issue of relevance, how should the judge rule?
The evidence is not relevant because John's car was not made by the same manufacturer as Jane's car.
This testimony is not relevant, without regard to the time or mileage at which John's car failed, because his car was not made by American Motors.
As part of a sting operation, the Capital City police department sent out an undercover officer to sell cocaine on the street. Thomas was walking by the undercover officer when the officer called him over and convinced him to buy some cocaine. After Thomas bought the cocaine, he was immediately arrested for possessing a controlled substance.
At trial, Thomas is using an entrapment defense. Under the laws of his jurisdiction, this defense requires him to prove that he did not have any predisposition to commit the crime, and that the law enforcement officer persuaded him to take possession of the drug. In his defense, his calls his friend Terry. Terry will testify that a year ago he was at Thomas’ house for a party, and Thomas noticed a number of guests snorting cocaine in the corner. Terry will further testify that Thomas became very angry, walked over to the group, and told them to stop and to never use cocaine in his house again.
The prosecutor objects to Terry’s testimony. Is it admissible?
Yes, the testimony is admissible.
Correct. Although it is true that specific act evidence is inadmissible to prove propensity, in this case the evidence is being used to prove the defendant’s character directly; i.e. that he did not have a predisposition to use drugs, which is relevant to Thomas' entrapment defense. Under Rule 405, specific act evidence is admissible if offered to prove character that is an essential element of a claim, charge, or defense.
Karen is charged with a crime that occurred on March 15, 2011, and at her trial in October 2011 she offers Mary as an alibi witness, who testifies that Karen was at work when she is alleged to have committed the crime. On cross examination, the prosecutor seeks to ask Mary “Weren't you convicted in November 2001 of ‘filing a false statement in connection with your taxes’”?
Assume that the prosecutor has a certified copy of the judgment in Mary's 2001 case, showing she was found guilty on November 15, 2001, for which she received the maximum penalty of eleven months and twenty-nine days incarceration, all of which was suspended. Karen objects that this is inadmissible.
How should the judge rule?
Overrule the objection, because establishing the elements of this crime required proof of an act of dishonesty or a false statement by the witness and the prior conviction is not time-barred.
This is a crime whose elements require proof of a false statement, thus it satisfies FRE 609(a)(2), and it is not time-barred since the sentence was imposed less than ten years ago.
Prior to his criminal trial, Defendant seeks a preliminary ruling from the judge to exclude from admission into evidence at trial certain crime scene photographs as unfairly prejudicial. The judge withholds making a preliminary ruling, saying “I’ll decide when I see the rest of the evidence at trial.”
What must Defendant do to ensure that his objection to the evidence is preserved for appellate review?
Defendant must object during trial at the time the evidence is presented.
Rule 103 requires the party objecting to the evidence to make a timely objection in order to preserve the issue for appellate review.
Pam is injured when her “Vegomatic” slicer/dicer/spiralizer cuts off the tip of her finger, and she sues Vegomatic for failing to adequately warn users of the danger to their fingers. Vegomatic answers that Pam was negligent in her use of the appliance. Shortly after her injury, Vegomatic places this warning at the top of its instructions: “Warning! Vegomatic blades are sharp! Keep fingers away from the blades!”
At trial, Vegomatic’s Chief of Product Engineering testifies, “Absolutely nothing could have been done to make the Vegomatic a safer household appliance. It would have been impossible to make one that was safer.” Pam seeks to introduce Vegomatic’s warning. Vegomatic objects.
How should the judge rule?
Admit evidence of the warning, because the feasibility of precautionary measures is disputed. This is an exception to FRE 407
The addition of a warning, however commonsensical, is nevertheless a subsequent remedial measure, but it is admissible here because the defendant's witness disputed the feasibility of precautionary measures.