2008 Evidence 1st half Flash Cards

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Title: 2008 Evidence 1st half
Description: Evidence, Fall 2008 1st half, University of Baltimore
Number of Cards: 129
Save Count: 0
Author: kylewis8
Created: 2010-03-04
Tags: marylandev1
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    • Question
    • Answer
    • Side 3
    • When would the defense go first?
    • if the team has conceded all issues on which plaintiff/prosecution has burden of persuasion of and of production of evidence AND defense asserted a counterclaim (civil) or affirmative defense on burden of defense
    • Who goes first/second?
    • 1) Plaintiff case in chief
      2) defendant case in defense of plaintiff's claim and case in chief (civil)
      3) Plaintiff's case in rebuttal
      4) Defendant's case in rebuttal
    • Order of trial
    • 1)Pre-trial motions
      2)Calling of the case
      3) possibly more pre-trial motions
      4)voir-dire of prospective jurors
      5) impanel/swearing in jury
      6) opening statement (prosecution first followed by defense)
      7) Plaintiff side (evidence inclusion)
      8) Defendant' motion for judgment/motion of acquittal)
      9)defendant's case in defense (evidence inclusion)
      10)plaintiff's rebuttal (limited to affirmative defense raise though could be opened further by judge's discretion)
      11) rejoinder (defend) and then surebuttal (pros)
      12) closing argument: Plaintiff then defense with plaintiff rebut)
    • Order of examination
    • Direct, cross, redirect, recross
    • Scope of cross-examination: limited
    • cross examiner entitled in 2 areas
      1) substantive evidence(prove what happened which direct examiner revealed)
      2) impeachment of witness
    • Rule of completeness
    • providing another alternative as to writings or recordings only
      Request the court to have the opponent then put in other parts of the writing, or other writing, that ought in fairness to be considered with it
      Rule 106
    • Judge ability to ask question
    • Judge's questioning is permissible if aimed at clarifying the evidence or managing the trial.
      614(b)
    • What is the most basic rule of evidence?
    • admissible evidence MUST be relevant EITHER as
      1)substantive evidence - relevant to an issue in the case as to who did what
      2) impeachment-relevant to the credibility of the witness
    • Relevant evidence definition
    • 1) relevance: relationship between the evidence offered and fact sought to be established
      2) materiality: relationship between the fact sought to be established and issue in the case
      3 column format
      Evidence offered, Fact, Substantive issue in case (or credibility of evidence)
      Rule 401 (FRE)
    • Relevant evidence admissability
    • all relevant evidence is admissible
      Rule 402 (FRE)
    • Exclusion of relevant evidence
    • if probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, mislead jury, undue delay
      FRE 403
    • Barrier needed to meet relevance
    • very little needed
    • Direct evidence
    • fact is provided only by eyewitness to that fact
    • circumstantial evidence
    • all other evidence from which one or more inferences must be made in order to the provide the fact at issue in the case
    • preliminary questions: question of admissability
    • standard: preponderance of the evidence
      Determiner: Trial judge
      Whether preliminary facts have been proved to the judge's satisfaction
      FRE 104(a)
    • preliminary question: relevancy conditioned on fact
    • when preliminary fact must be true in order for offered evidence to be relevant. Trial judge must admit the evidence even if the judge does not believe the evidence offered to prove the preliminary fact. BUT evidence is sufficient to support a reasonable jury's finding that preliminary fact is true
      FRE 104(b)
    • Relevant fact vs relevancy conditioned on fact
    • determination of whether more evidence is needed to prove the preliminary/foundational fact
    • first hand knowledge requirement
    • all non-expert witnesses are required to testify only to that of which they have personal, first-hand knowledge.
      FRE 602
      FRE 104(B) : evidence sufficient to support a finding that the witness has personal knowledge of the matter
    • Lay opinion rule
    • admissible if based on 1) rational perception of the witness AND 2) helpful to a clear understanding of witness's testimony or determination of a fact issue
      FRE 701
    • Exclusion of opinion
    • if opinion is superfluous and not need where the jury is a position to decide by itself

      can testify to the mens rea by using circumstantial evidence (actus reus)

      NOTE Md exception: Guilty but not criminal responsibly by insanity vs. federal (not guilty due to insanity) Hinkley amendment
    • Evaluation whether lay opinion is admissible
    • 1)witness in a better position than the jury/judge to form the opinion
      2)witness speculation ( would the witness need to be an expert in order to reach the conclusion)
      3)would the testimony be more helpful and make more concrete
    • collective facts doctrine
    • case law has approved opinion testimony to certain opinions that could theoretically be broken down to underlying facts
      Reason:
      1)witness may not remember the underlying factual details
      2) more useful for painting a picture to the jury
      3) may be the most cogent/efficient way to provide evidence
    • Maryland Speed cases
    • lay witness may testify to whether a vehicle was moving fast
      Lax standard: includes all licensed maryland drivers
    • Narrative question
    • asks the witness to tell a story
      FRE 611(a)
    • Asked and answered rule
    • when counsel for one party has already asked the same witness the same question and received a responsive answer to it, but the same counsel then asks it again
      FRE 611(a)
    • leading question
    • suggests to the witness the answer that counsel desire
      FRE 611(C)
      NOTE: leading questions are allowed on cross
      NOTE 2:leading witness is disallowed on direct or redirect
    • Exceptions where to permit leading questions on direct
    • 1)refresh the witness's memory if shown to be exhausted
      2) bring the witness to the appropriate subject matter
      3) background info regarding the witness
      4) preliminary matter such as laying the foundation for particular evidence
      5) other matter not really in dispute
      6) as necessary when witness is young or inarticulate
      7)may lead an adverse party on direct (with permission)
    • Compound question
    • asking more than 1 question in one question causing confusion of what to answer
      FRE 611 (a)
    • Badgering the witness
    • harassment, subject to the objection "asked and answered"
      venturing into irrelevant matters
      FRE 611(a)
    • Motion to strike on ground that answer was non-responsive
    • only counsel who asked may move to strike
    • Objection at deposition
    • objection to the form of the question must be made at time of deposition or waived at time of introduced at trial
      NOTE: objection on other grounds such as relevance or hearsay are NOT waived if not made at deposition
    • Prerequisites for finding reversible error
    • 1) trial judge committed error
      2) Counsel preserved the error (absent small window for plain error)
      3) error was so substantial as to be reversible rather than harmless
    • Plain error
    • error was so outrageous that even though the trial counsel did NOT object, the judge SHOULD have objected and the error deprive the appellate client of due process
      FRE 103(d)
    • How to review an error claimed in the exclusion of evidence
    • 1) put the substance of the excluded evidence on the record, generally by making an offer of proof/proffer
      FRE 103 (a)(2)
      2) if on the face, the evidence is objectionable, explain why it should be admitted
      a) admit for a limited purpose
      b) explain why the statement is not hearsay or should fall under an exception part
      c) explain why the statement is relevant
    • making an offer of proof
    • Two ways
      1) say on the record outside of the jury's hearing, what the witness would have said. Witness must be named and what would be have said must be recorded
      2)have the witness answer the question at the bench with the court reporter or otherwise out of the jury's hearing
      FRE 103(c)
    • when offer of proof is not required
    • when the substance of the evidence was apparent from the content within which questions were asked
      NOTE: if question to which objection was sustained was leading OR witness's testimony was stricten --> recorded on transcipt
    • when to make a proffer
    • At trial, outside of jury UNLESS the trial judge made a pre-trial decision
    • When error was committed in admission...
    • counsel must make a timely objection or motion to strike
      NOTE: federal court- must state the reason
      NOTE 2: if only part is objectionable, specific objection to that specified part must be noted
    • limited jury instruction
    • when evidence is admitted for only a limited purpose, asked for limited jury instruction that such evidence should be used for limited part
      FRE 105
    • general objection and federal court
    • general objection is not preservable
    • absent limited jury instruction
    • judge/jury may consider evidence for any purpose
    • for pretrial motions in Maryland, what must be covered
    • alleged illegal confessions, fruit of illegal searches, improper suggestive pretrial identification \
      MD Rule 4-252
    • MD objections stated vs. unstated
    • Generally, objection doe not need to be specified.
      Only when objections involve constitutional right, must be stated
    • Objection to jury instructions
    • Must be stated with specific objection to specific parts of the instruction and must be completed prior to jury retiring to deliberate
    • Continuing objection
    • may make a motion for continuous objection for a line of questioning
      MD-2-517(b) and 4-323(b)
      NOTE: if in doubt, renew the objection and make sure the objection does not lapse
    • After a motion in pretrial (in limine) (maryland)
    • objection must be renewed at trial if the motion at pre-trial to exclude evidence was denied
    • motion to strike at close of opponent's case
    • if prior objection because of lack of foundation and opponent closed without connecting, must renew the motion at the end to strike
    • Opening the door principle
    • introduction of inadmissible material by one party will allow opponent with court's discretion to introduce evidence to rebut any false impression arising from the entrance of such evidence
    • standard of review
    • finding of fact by judge = clear error
      whether evidence is hearsay = de novo
    • hearsay evidence rule
    • hearsay evidence is inadmissible
      FRE: 802
    • hearsay
    • Out of court statement offered for TOMA and is excluded
    • statement
    • oral or written assertion or nonverbal conduct intended to be an assertion
    • declarant
    • person who makes the statement
    • hearsay exception (3)
    • circumstantial
      effect on the hearer
      legally operative fact
    • hearsay dangers
    • Perception
      Memory
      Sincerity
      Narrative
    • perception
    • was the statement perceived in the way it was intended to be perceived

      2) was the witness present when the statement was made -- 1st hand knowledge requirement
    • memory
    • accurate recall of the event
    • sincerity
    • speaker truthfulness without motivation to lie
    • narrative
    • manner in which speech was presented
    • non-human declarant
    • something not human making a statement= verbal marker
    • truth=
    • belief + accuracy
    • belief=
    • sincerity + narration
    • accuracy=
    • perception + memory
    • legally operative fact
    • utterance creates the claim
      clarifying an action
      statement has magic (word(s) that are essential to prove the element of the claim)
      substantive law
    • substantive
    • element of the claim is in the OCS
    • Statement offered to prove their effect on the hearer
    • statement putting the hearer or reader on notice
    • Type of effect on the hearer
    • 1) offered as circumstantial evidence of the declarant's consciousness, ability to talk, speak a particular language
      NOTE: Neither sincerity nor accuracy at issue

      2) relevance requirement is met if the declarant was sincere
      NOTE: regardless of accuracy
    • Metrobus example
    • stop 1: if it doesn't matter whether declarant believed what s/he said or not, OCS admit

      stop 2: will help to prove fact it's offered to prove as long as Declarant believed what s/he said, EVEN IF declarant was factually wrong

      3)declarant's belief alone is not enough.
      Need BOTH
      1) sincere
      2) factually correct

      ==> hearsay
    • forms of statement
    • 1) verbal assertion in either oral (conversation) or written (note/document)

      2) non verbal assertive conduct: intended as a substitute for particular, identifiable words: out of court declarant's response of nodding affirmatively to a question asked
    • 2 ways verbal utterances = hearsay
    • 1) offered to prove the truth of the matter directly asserted by the declarant
      2) offered to prove the truth of an assertion implied by the declarant
      built on
      a) utterance not made unless s/he believed a particular fact to be true
      AND
      b) Out-of-court utterance is offered t prove the TRUTH OF THAT FACT the declarant apparently believed
    • Implied assertion (MD)
    • is ambiguous --> not hearsay
      is assertive --> hearsay and must fall in a hearsay exception to be admitted
      does not care about the intent
      cannot use context to clarify
    • implied assertion (federal)
    • majority: clearly assertive (element of intent in order for it to be implied-- insert words to place expression and still the same meaning) --> hearsay

      can use context to clear
    • implied assertion common law
    • ambiguous (non-affirmative) is hearsay
    • bright line federal
    • not a direct assertion (not a clear assertion) --> not an OCS
      direct assertion -->only hearsay if it goes to TOMA.
      ex. dog is red
      explicit with no ambiguity whatsoever
    • confrontation clause arises when..
    • there is hearsay