Please enable JavaScript.
Coggle requires JavaScript to display documents.
Is the evidence admissible?, Does enough evidence exist that a r. jury…
Is the evidence admissible?
Relevancy analysis
Substantive
Does the evidence tend to support a fact (probative)?
Does the evidence have a tendency to make a fact more likely (relevant)? Is the fact material to the case (relevant)?
Yes. Is the evidence of subsequent remedial measures, settlements, offers to compromise, medical expenses, pleas, or liability?
No. Is the evidence prejudicial, misleading, cumulative, etc. and does that outweigh the probative value?
Yes. Could be inadmissible (403).
No or maybe. Who is the evidence being used against?
The defendant or victim.
What is the evidence?
5 more items...
The witness.
What is the evidence?
7 more items...
The declarant (if the evidence is hearsay)
What is the evidence?
2 more items...
Yes. Specialized Relevance (407-411).
Subsequent remedial measures (407). Measures would have make an earlier injury less likely to occur.
Used to prove negligence, culpable conduct, a defect in product design, need for warning instruction. Barred.
Used to prove ownership, control, feasibility of precautionary measures, or anything else. Allowed.
Does the evidence pass the 403 test?
2 more items...
Attempts to compromise (408). Settlements, money, statements or conduct during the compromise.
Used to prove the validity or amount of a claim in dispute, or used to impeach/contradict a statement. Barred.
Used to prove witness's bias, show no undue delay, prove obstruction in investigation, or anything else. Allowed.
Payments or offers to pay medical bills (409).
Used to prove liability for the injury. Barred.
Pleas (410). Withdrawn guilty pleas, statements/conduct during plea.
Used against the defendant who made/participated in the plea. Barred.
Used in a criminal proceeding for perjury or false statement. Allowed.
Liability Insurance (411).
Used to prove the person acted negligently or otherwise wrongfully. Barred.
Used to prove witness's bias or prejudice, agency, ownership, or control. Allowed.
Flashcards
Specialized relevance notes
No. Inadmissible (401).
Procedural
Judge must decide if witness is qualified, privilege exists, or evidence is admissible (104a)
Will the judge allow the jury to hear the evidence? (104b)
If the fact is true, the evidence is relevant (conditional relevance)
If the fact is true, the rule will apply (and the rule will bar otherwise relevant evidence)
Factual disputes are up for the judge to decide.
Judicial notice (201).
Only applies to adjudicative facts (one that helps prove the elements of a specific case) as oppose to legislative facts that inform a court's ruling on a legal issue.
The fact must be not subject to reasonable dispute (201b). And either:
generally known within the trial court's jurisdiction; or
Instructing the jury:
Civil case- jury accepts the facts a conclusive. Criminal case- the jury may or may not accept the noticed facts as conclusive.
Can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned.
Notes found here.
Flashcards
Problem Set
Likely Admissible
Questionably Admissible
Likely not Admissible (with exceptions)
Witnesses
Is the witness qualified?
Who is the witness?
Someone with personal knowledge (602) who took an oath or affirmation (603).
Is the witness competent? Do they appreciate the duty to tell the truth, and have a minimal capacity to observe, recall, and communicate? (601).
No, they are young, impaired, etc.
Can object, but it is usually overruled. Object under:
(602) they do not have personal knowledge if they cannot comprehend or recall.
(603) they are incapable of taking an oath.
Yes. The witness is qualified.
Other witness specific rules.
An interpreter or expert who is qualified and took an oath or affirmation (604).
Expert witnesses
The witness is qualified if:
Must satisfy the rule (702):
the testimony is based on sufficient facts or data
Does the witness/testimony meet the criteria?
2 more items...
the testimony is the product of reliable principles and methods
the expert has reliably applied the principles and methods to the facts of the case
The expert's scientific/technical/specialized knowledge will help the jury to understand the evidence/determine a fact at issue.
The witness is appointed by the court (706).
A juror (606).
Cannot testify about:
Statements or incidents during deliberations.
Effect of anything on vote.
Any jurors mental process.
Can testify about:
Extraneous prejudicial information
Outside influence
Does not include alcohol or drugs.
Clerical error in verdict form.
The presiding judge may not testify (605).
Procedural considerations.
Court's control over examination, and purposes (611):
Make procedures effective for determining the truth.
Avoid wasting time.
Protect witnesses from harassment or undue embarrassment.
Flashcards
Witnesses notes
Problem Sets
Hearsay Analysis
Is the evidence hearsay (801)?
The evidence is a statement (801a)
What is the purpose of admitting the statement (801c2)?
Used to prove (the truth of the matter asserted) what the statement is actually about, substantively.
Ie, Lisa testifies that Greg said he saw the professor hear the cafe. It is hearsay if used to prove the professor was near the cafe.
Is hearsay. Not admissible unless it meets an exception.
Used to prove something else- knowledge of the speaker, notice to the listener, effect on the listener, legally binding statements.
Ie. is not hearsay if used to prove Greg new where the professor was.
Is not hearsay, but still limited.
Judge will do a 403 balancing test.
Passes balancing test. Evidence will be admitted with a limiting instruction telling the jury that the evidence is only to be used for X and not for Y.
Fails balancing test. Evidence is inadmissible.
The evidence is an action (801a).
Looking at the context of the action, was the action asserting something?
The action (nodding, pointing, etc) makes an assertion.
The action is hearsay. Not admissible unless it meets an exception.
The action was not intended as an assertion.
The action is not hearsay. Not applicable to hearsay rules.
The evidence is physical evidence.
Videos, pictures, machine generated things (time on clock, AI generated).
Generally not considered a "statement" under hearsay. Not applicable to hearsay rules.
Writings.
Are considered a "statement" under hearsay. Is not admissible unless it meets an exception.
There can be multiple levels of hearsay (805). Each level must go through it's own analysis in order to be admissible.
If the evidence is hearsay, it is barred (802) unless it meets an exception.
What is it?
Statement
Is the declarant able to testify?
Yes.
FRE 801(b) exceptions.
Opposing-party exception.
Is the statement offered against an opposing party?
2 more items...
Declarant-witness exception.
Did the declarant testify at this trial about the statement, and was subject to cross?
2 more items...
Yes - FRE 803 exceptions.
Present Sense Impression (803(1)).
Does the statement describe the event?
2 more items...
Excited Utterance (803(2)).
Was the statement made while declarant was excited (subjective)?
2 more items...
Then-Existing Condition (803(3)).
Is the statement showing the then-existing state of mind?
2 more items...
Statement Made for Medical Diagnosis or Treatment (803(4)).
Was the statement made for medical diagnosis or treatment (subjective)? Even if in preparation for litigation.
2 more items...
No - FRE 804 exceptions.
Is the declarant unavailable (804a)?
Exempted from testifying about the statement because the statement is privileged.
Refuses to testify (ie pleads the 5th A).
Testifies that they do not remember the subject matter (not just details) of the statement.
Did the party who called the witness cause them to be unavailable?
2 more items...
Declarant died or is very ill (mental or physical).
The party has searched for the declarant, but they cannot be found.
Records
Record
Business Records of Regularly Conducted Activity (803(6)).
Is the record from a business (org., self-employed, investment purposes, etc.)?
No. Barred by 802.
Yes. Was the record made or info sent by someone with personal knowledge?
Yes. Was making the record part of a regular practice?
2 more items...
No, Barred by 802.
Public Records (803(8)&(9)).
Did a public office make the record?
What is the record about?
The office's activities.
1 more item...
A matter the office has a legal duty to report
2 more items...
Statements in a report of a governmental investigation.
2 more items...
Absence of Records.
Absence of a Record of a Regularly Conducted Activity (803(7)).
Does the evidence meet the criteria under 803(6)?
Evidence that something is not included in the record can be admitted.
Absence of Public Record (803(10)).
Does the evidence meet the criteria under 803(8) or (9)?
Family Records.
Certificates of Marriage, Baptism, and Similar Ceremonies (803(12)).
Is the statement of fact contained in a certificate?
Yes. Was the certificate made by a person authorized to perform the act?
2 more items...
No. Inadmissible.
Records of Religious Organizations Concerning Personal or Family History (803(11)).
Statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts.
If yes to both, admissible.
Contained in a regularly kept record of a religious organization.
Family Records (803(13)).
Is the statement of fact about personal or family history?
Yes. Is the statement contained in a family record (Bible, genealogy, chart, engraving, etc.)?
2 more items...
No. Inadmissible.
Property Interests.
Records of Documents that Affect an Interest in Property (803(14)).
Is the record used to prove the original recorded document?
Yes. Is the record kept in a public office that is authorized by a statute to keep it?
2 more items...
No. Inadmissible.
Statements in Documents that Affect an Interest in Property (803(15)).
Is the statement relevant to the document's purpose?
No. Inadmissible.
Yes. Are the later dealings with the property inconsistent with the purpose of the document?
2 more items...
Ancient Documents (803(16)).
Made before January 1, 1998 and authenticity is established - is admissible.
Comercial Records.
Market Reports and Similar Commercial Publications (803(17)).
Market quotations, lists, directories or other compilations.
Are they generally relied on by the public or by persons in a particular occupation?
2 more items...
Statements in Learned Treatises, Periodicals, or Pamphlets (803(18)).
Did an expert witness call attention to the document?
No. Inadmissible.
Was the document established as a reliable authority?
1 more item...
Recorded Recollection - Record because a witness forgot (803(5)).
Is the item a record (memo, report, data, recordings)?
Does the witness no longer recall the info in the record?
Did the witness make/adopt the record when the matter was fresh in their memory?
1 more item...
Reputation
Reputation
Reputation Concerning Boundaries or General History (803(20)).
A reputation in the community...
That arose before the controversy...
Concerning boundaries of land, customs, historical events, etc.
1 more item...
Reputation Concerning Character (803(21)).
Reputation among friends or community...
concerning character
is admissible.
Reputation Concerning Personal or Family History (803(19)).
A reputation among family, friends or community...
Concerning the person's birth, death, adoption, etc.
Is admissible.
Previous judgement
Previous judgement
Judgment Involving Personal, Family, or General History, or a Boundary (803(23)).
Was the matter essential to the judgement?
Can the matter be proved by evidence of reputation?
If yes to both, can be admitted to prove a matter of personal, family, or general history or boundaries in the case in chief.
Judgment of a Previous Conviction (803(22)).
Was it a guilty plea or was there a trial?
Yes, guilty plea and/or trial. Was it punishable by death or >1 year in prison?
Is the evidence offered by the prosecutor in a criminal case for non-impeachment reasons?
1 more item...
Admissible to prove fact essential to judgement.
No, it was a nolo cantendere plea. Not admissible.
FRE 807 Catch All
The statement doesn't meet an exception, but can be admissible under 807 if:
The statement is trustworthy. Consider the totality of the circumstances and evidence supporting trustworthiness.
The statement is more probative than any other evidence (that the party has or reasonably can obtain).
If the evidence meets a hearsay exception, consider the Confrontation Clause.
Confrontation Clause issues only arise in criminal cases.
The statement is offered AGAINST the defendant.
Is the statement a testimony?
The statement is NOT testimony.
The statement is a testimony.
Did the declarant testify?
Two part test:
The defendant must have had a chance to cross examine the declarant at a different time; and the defendant must have had similar motives to question.
1 more item...
The prosecution must establish that the witness is unable to testify.
4 more items...
If the two part test is satisfied (declarant unavailable, defendant has questioned) then there is no Confrontation Clause issue.
If the declarant cannot testify, and the defendant has not had an ability to cross then there is no Confrontation Clause issue.
If the defendant can/will testify then there is no Confrontation Clause issue.
How to tell if the statement is a testimony:
Is definitely a testimonial:
formal statements made during litigation, statements responding to conventional police interrogation
Is definitely not testimonial:
Business records, statements made in furtherance of a conspiracy, the defendants own statements
Might be testimonial:
Statements made to law enforcement outside of traditional interrogation (objective test).
2 more items...
Lab reports.
1 more item...
Statements among private parties.
2 more items...
The statement is offered BY the defendant or in favor of the defendant.
Hearsay Quizlet 1
Hearsay Quizlet 2
Hearsay quiz with answers
Federal Rules of Evidence PDF
Other barriers to admissibility.
Authenticating evidence
Requires extrinsic evidence (901).
Proponent must produce evidence sufficient to support a finding that verifies the item is what the proponent says it is.
Examples found in the rule.
Evidence that is self-authenticating (902).
Require no extrinsic evidence.
List found in the rule.
Privilege (501; 502).
attorney-client privilege: confidential communication made between councilor and client for the purpose of council.
If a party waives AC privilege or work product protection, this waiver extends to other confidential communications, IF:
The waiver is intentional;
the disclosed and undisclosed communications or information concern the same subject matter; and
They ought in fairness to be considered together.
Does enough evidence exist that a r. jury could resolve the dispute? (Prima facie standard)
Yes. Evidence is presented to jury.
No. Evidence is not presented to jury.
Hearsay is inadmissible (802).