FRE

Question 1

Similar occurrences

Answer 1

Where evidence is admissible even though it involves a different place, time, event, or person not involved in litigation.

Often used for complicated issues of causation.

Question 2

Prior Accident Claims

Answer 2

P’s prior accidents or claims are not admissible

Question 3

Exception to prior accident claims rule

Answer 3

1. Where the there is a common scheme or fraud

2. Where it is relevant on the issue of damage to P.

Question 4

Rebuttal evidence

Answer 4

Allowable to rebut an impossibility

Question 5

Comprable sale to establish value

Answer 5

Sale prices admissible if:

1. Same general description (kind)
2. Same relevant time period (time)
3. Same general geographic area (place)

Question 6

Habit evidence

Answer 6

Relevant to show that a person acted in the same way on the occasion in question.

Question 7

What is habit?

Answer 7

1. Specific detailed conduct
2. Recurrence

The language “always” “instinctively” “invariably” “automatically”

Question 8

Business routine

Answer 8

Habit evidence for businesses.

Question 9

Industrial or trade custom

Answer 9

admissible as non-conclusive evidence on standard of care.

Question 10

Liability insurance

Answer 10

Not admissible to show person acted negligently, wrongfully, or their ability to pay.

Question 11

Exceptions to admission of liability insurance

Answer 11

1. To show ownership or control

2. To impeach credibility of witness by showing interest or bias.

Question 12

Subsequent remedial measures

Answer 12

Not admissible to show:

1. Negligence
2. Culpable conduct
3. A defect in a product
4. A defect in product design
5. A need for a warning.

Question 13

Subsequent remedial measures can be used to show:

Answer 13

1. ownership or control

2. impeachment - feasibility of precautionary measures.

Question 14

Settlements

Answer 14

Not admissible to prove fault, liability or amount of damage.

Question 15

Settlement exclusion includes what 5 things?

Answer 15

1. Actual compromises
2. Offers to compromise
3. Offers to plead guilty in a criminal case
4. Withdrawn pleas of guilty
5. Please of nolo contendere

ANY ‘meaningful settlement talk’

Question 16

Limitations on settlement exclusion

Answer 16

1. There must be a CLAIM.

2. The claim must be disputed as to either liability or amount

Question 17

Offers to pay medical expenses

Answer 17

Not admissible - even though it’s not a settlement offer. UNLESS the offer accompanies a naked offer to pay hospital or medical expenses.

Question 18

Purposes of Character Evidence

Answer 18

1. Character is directly in issue
2. Character as circumstantial evidence of a person’s conduct at the time of litigated event.
3. Character to impeach the credibility of a witness.

Question 19

Character evidence in civil cases

Answer 19

No character evidence in civil cases UNLESS the character of the party is itself a material issue in the case.
(ex. defamation)

Question 20

Sixth Amendment Right to Confrontation

Statements will not be admitted EVEN IF they fit a hearsay exception when (4 factors):

Answer 20

1. Offered against the accused in a criminal case, AND
2. Declarant is unavailable for trial, AND
3. Statement was testimonial, AND
4. Accused had no opportunity to cross.

Question 21

“Exception” to 6th Amendment Right to Confrontation

Answer 21

When the prosecution demonstrates that D has prevented the declarant from testifying at trial because of D’s wrongdoing.

Only applies when D INTENDS to prevent testimony.

Question 22

Testimonial

Answer 22

A statement that a reasonable declarant will be used in the prosecution or investigation of a crime.

(Includes forensic lab reports on fingerprints, drugs, etc.)

Question 23

5 Considerations in determining whether statements are testimonial

Answer 23

1. Motive of declarant.
2. Motive of interrogator
3. Temporal element
4. ID of person eliciting the statement (cop or family member?)
5. Degree, amount, circumstances, and location of police interrogation.

Question 24

Prior acts of misconduct admissible to show:

Answer 24

1. Motive
2. Intent
3. Opportunity
4. Preparation
5. Plan
6. Knowledge
7. Identity
8. Absence of mistake

Question 25

Judicial notice is appropriate when:

Answer 25

when the fact is INDISPUTABLE or can be verified through scientific principles.

Question 26

Judicial notice: Criminal Cases

Answer 26

judicial notice is not conclusive – jury is not required to conclude that that fact has been established.

Question 27

Judicial notice: Civil Cases

Answer 27

Fact is presumptively established.

Question 28

2 things a judge, not a jury, gets to decide:

Answer 28

1. Judge gets to decide who testifies as an expert. | 2. Judge gets to decide whether OOC statement was a hearsay exception.

Question 29

What may be used to refresh recollection?

Answer 29

ANYTHING.

Question 30

What must you do if you want to use a document to refresh a witness?

Answer 30

2. If you use a document to refresh the recollection of the witness it must be made available to opposing counsel – then SHE may introduce it into evidence and you have no objection.

Question 31

3 types of character evidence

Answer 31

1. Reputation Evidence 2. Opinion Evidence 3. Specific Acts (prior crimes, reckless behavior, charity, etc.)

Question 32

Criminal Trial: Propensity Evidence

Answer 32

1. Prosecutor cannot introduce any evidence of the D’s bad character if the purpose of the evidence is to show that he probably acted in conformity with his bad character, the same away again, and committed the crime charged.

Question 33

Criminal Trial: Good Character Evidence

Answer 33

2. D is allowed to present evidence of prior good character traits to show that he acted in conformity of his good character and did not commit the crime. Specific acts are not allowed!

Question 34

If D presents evidence of good character then...

Answer 34

P is allowed to introduce evidence of D’s bad character. a. P can present reputation or opinion evidence to establish bad character. b. P can also ask D’s character witness if they have ‘Heard…’ crimes of the D

Question 35

When may prior acts be used? | MIMIC

Answer 35

If P is introducing evidence of the prior crime OTHER THAN THE propensity purpose – then the rule on character evidence will NOT keep out prior crime. Prior crime could still be excluded if the probative value is substantially outweighed by the prejudice.a. Motive b. Identity c. Mistake, absence of d. Intent e. Common scheme

Question 36

If D chooses to testify...

Answer 36

His character for honesty is immediately in question and P can bring character evidence to show he is not honest.

Question 37

Character Evidence in Civil Cases

Answer 37

Generally NOT ALLOWED

Question 38

5 ways to impeach credibility

Answer 38

1. Prior inconsistent statement 2. Bias or Motive to Misrepresent 3. Prior Conviction 4. Specific acts 5. Bad reputation

Question 39

Prior inconsistent statement

Answer 39

Show that witness has made inconsistent statements on a prior occasion with some material part of present testimony. Destroy the credibility of a witness. a. If prior statement was given under oath at a prior trial or deposition – then the statement is admissible to impeach AND as substantive evidence – if not then the statement is just coming in to impeach.

Question 40

Bias or motive to misrepresent

Answer 40

Always material. Always allowed. | a. Extrinsic evidence is allowed if the witness denies the bias or motive to misrepresent.

Question 41

Prior Conviction

Answer 41

a. Dishonesty or false statement? It is always material. It is always admissible, whether it’s a felony or a misdemeanor. i. No discretion on the part of the judge. b. If it’s a serious crime punishable by more than one year in jail – can use it to impeach but the tr. judge has discretion on whether or not to exclude it. c. Too remote if more than 10 years have passed from the date of release for the confinement of the conviction. Not usable.

Question 42

Specific acts of misconduct

Answer 42

bear on truthfulness/untruthfulness. a. Prior bad acts, not convictions. b. If witness denies the specific act → NO extrinsic evidence is allowed.

Question 43

Bad reputation in the community for truth

Answer 43

This may be proven by extrinsic evidence.

Question 44

Character evidence in a criminal case

Answer 44

In a criminal case D must open the door. This is where D offers evidence of good character by rep. or opinion and P may rebut.

Question 45

Admissions

Answer 45

Statement made or act done that amounts to a prior acknowledgement by one of the parties to an action of one of the relevant facts.

Question 46

Materiality

Answer 46

concerns whether the disputed fact is at issue in the case.

Question 47

Probativeness

Answer 47

concerns whether the evidence makes the existence of the fact more probable than it would be without the evidence.

Question 48

Proximity

Answer 48

refers to how close in time the evidence is to the events at issue in the case. When testimony or exhibit evidence that relates to a time, event, or person other than the time, event, or person directly involved in the controversy being litigated is offered, courts often consider the evidence’s proximity in time to the events in question when determining its relevance.

Question 49

Burden of Producing evidence

Answer 49

is the burden of introducing sufficient evidence to avoid judgment against her as a matter of LAW.

Question 50

Burden of persuasion

Answer 50

determination by jury.

Question 51

A writing may be authenticated by: (3 things)

Answer 51

1. Evidence that the party against whom it is offered has either admitted its authenticity or acted upon the writing as authentic. 2. circumstantial evidence. For example, the rules for ancient documents and reply letters involve authentication by circumstantial evidence. Any proof tending in reason to establish genuineness is sufficient. 3. Evidence of the genuineness of the handwriting of the maker.

Question 52

Real evidence may be authenticated by: (2 ways)

Answer 52

1. Recognition testimony—i.e., a witness’s testimony that the object is what the proponent claims it is. 2. Establishing a chain of custody

Question 53

Easily tampered with evidence must be authenticated by:

Answer 53

the proponent of the object must show that it has been held in a substantially unbroken chain of possession but does not need to negate all possibilities of substitution or tampering.

Question 54

Original Evidence Refers to:

Answer 54

real evidence that has some connection with the transaction that is in question at the trial. An alleged murder weapon is an example of original evidence.

Question 55

Circumstantial evidence is:

Answer 55

evidence proved as a basis for an inference that other facts are true.

Question 56

Demonstrative evidence refers to:

Answer 56

real evidence that is prepared, such as sketches or models that are made to be shown to the trier of fact.

Question 57

The standard of proof for authenticating a document is proof:

Answer 57

sufficient to support a jury finding of genuineness, i.e., enough evidence to support a jury finding that the document is what the proponent claims it is.