Juris Doctor (JD) Evidence Flashcards

24 sample cards from the Evidence deck

Sampled from the end of the deck, so these are different cards from the ones shown on the syllabus page.

1. What are the requirements of the business records exception under FRE 803(6)?

   A record of an act/event/condition is admissible if: made at or near the time by someone with knowledge; kept in the regular course of business; making the record was a regular practice; and shown by a qualified witness or certification—unless the source or circumstances indicate a lack of trustworthiness.

2. What are the requirements for the statement-for-medical-diagnosis-or-treatment exception (FRE 803(4))?

   Statements are admissible if made for, and reasonably pertinent to, medical diagnosis or treatment, describing medical history, past or present symptoms, or their general cause. Statements of fault are generally excluded unless pertinent to treatment.

3. What are the four FRE 804(b) exceptions requiring declarant unavailability?

   (1) Former testimony; (2) dying declarations (statement under belief of imminent death about its cause/circumstances, in a homicide prosecution or any civil case); (3) statements against interest; and (4) statements of personal or family history. (Plus 804(b)(6) forfeiture by wrongdoing.)

4. What is 'forfeiture by wrongdoing' under FRE 804(b)(6)?

   A statement is admissible against a party who wrongfully caused—or acquiesced in wrongfully causing—the declarant's unavailability and did so intending that result. This also forfeits Confrontation Clause objections.

5. Under Crawford v. Washington, when does the Confrontation Clause bar admission of an out-of-court statement?

   In a criminal case, a testimonial statement by an unavailable declarant is barred unless the defendant had a prior opportunity to cross-examine the declarant. The Clause applies only to testimonial statements offered against the accused.

6. Under Davis v. Washington, what distinguishes 'testimonial' from 'nontestimonial' statements to police?

   Statements are nontestimonial when made to enable police to meet an ongoing emergency. They are testimonial when the primary purpose is to establish or prove past events potentially relevant to a later criminal prosecution.

7. What are the elements of the attorney-client privilege, and who holds it?

   A confidential communication between attorney and client (or their representatives), made for the purpose of obtaining or providing legal advice, is privileged from disclosure. The client holds the privilege and may waive it; it survives the client's death.

8. What is the crime-fraud exception to the attorney-client privilege?

   The privilege does not apply to communications made to enable or aid the client in committing or planning a future or ongoing crime or fraud. It does not protect advice sought to further wrongdoing.

9. Compare the two forms of spousal privilege (testimonial vs. confidential marital communications).

   Spousal testimonial (immunity) privilege: in a criminal case, a spouse may refuse to testify against the defendant-spouse; held by the witness-spouse; requires a valid marriage at trial. Confidential marital communications privilege: protects private communications made during marriage (civil or criminal); held by both spouses; survives divorce.

10. Under FRE 901, what is the general requirement for authenticating evidence?

    To authenticate an item, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. This is a low bar; the jury ultimately decides genuineness.

11. Under FRE 902, what is self-authenticating evidence (give examples)?

    Certain items require no extrinsic authentication, e.g., public documents under seal, certified copies of public records, official publications, newspapers/periodicals, trade inscriptions/labels, acknowledged (notarized) documents, commercial paper, and certified business and electronic records.

12. State the best evidence (original document) rule under FRE 1002 and when it applies.

    To prove the content of a writing, recording, or photograph, the original (or a duplicate) is required. It applies only when the contents are at issue—e.g., the writing is a legally operative document or a witness relies on the writing rather than independent knowledge.

13. Under FRE 1003 and 1004, when are duplicates and secondary evidence of contents admissible?

    A duplicate is admissible to the same extent as the original unless there is a genuine question about authenticity or it would be unfair (FRE 1003). Secondary evidence (e.g., testimony) is allowed if the original is lost/destroyed not in bad faith, unobtainable, in the opponent's control, or relates to a collateral matter (FRE 1004).

14. Under FRE 201, what facts are subject to judicial notice and what is the standard?

    A court may judicially notice an adjudicative fact that is not subject to reasonable dispute because it is generally known within the jurisdiction or can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

15. How does the effect of judicial notice differ between civil and criminal cases under FRE 201(f)?

    In a civil case, the jury must accept a judicially noticed fact as conclusive. In a criminal case, the jury may—but is not required to—accept the noticed fact as conclusive, preserving the defendant's right to a jury trial.

16. What is the effect of a rebuttable presumption in a civil case (the 'bursting bubble' theory under FRE 301)?

    A presumption shifts the burden of production (going forward with evidence) to the opposing party, but not the burden of persuasion. Once the opponent produces sufficient rebutting evidence, the presumption disappears and the underlying inference is for the jury.

17. What is the 'collateral matter' rule in impeachment by contradiction?

    Extrinsic evidence is not admissible to impeach a witness by contradicting testimony on a collateral matter—one with no significance to the case other than contradicting the witness. The cross-examiner must accept the witness's answer on collateral points.

18. What is the 'rule of completeness' under FRE 106?

    If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing/statement—that in fairness ought to be considered at the same time, even if it would otherwise be inadmissible hearsay.

19. What is the difference between hearsay 'exclusions' (FRE 801(d)) and hearsay 'exceptions' (FRE 803/804)?

    Exclusions (FRE 801(d))—prior statements of a testifying witness and opposing-party statements—are defined as not hearsay at all. Exceptions (FRE 803/804) admit statements that ARE hearsay but are deemed sufficiently reliable; some require declarant unavailability.

20. What is the residual (catch-all) hearsay exception under FRE 807?

    A hearsay statement not covered by a 803/804 exception may still be admitted if it has sufficient guarantees of trustworthiness (considering totality of circumstances and corroborating evidence) and is more probative on the point than other reasonably obtainable evidence, with reasonable notice to the adverse party.

21. Under Bruton v. United States, what Confrontation problem arises in a joint trial?

    In a joint criminal trial, admitting a non-testifying co-defendant's confession that facially incriminates the other defendant violates the Confrontation Clause, even with a limiting instruction, unless the confession is redacted to eliminate reference to the co-defendant.

22. How do FRE 104(a) and 104(b) allocate the judge's role on preliminary questions vs. conditional relevance?

    Under 104(a), the judge decides preliminary questions about admissibility (competency, privilege, qualifications) by a preponderance and is not bound by the rules of evidence (except privilege). Under 104(b), for conditional relevance, the judge admits the evidence if there is sufficient proof for a reasonable jury to find the condition fulfilled.

23. What is impeachment by bias, and is extrinsic evidence permitted?

    Bias impeachment shows the witness has a motive to favor or oppose a party (e.g., relationship, financial interest, hostility, plea deal). Bias is never a collateral matter, so extrinsic evidence is admissible (though most courts require a foundation/opportunity to explain).

24. What is the chain-of-custody requirement, and when is it needed for authentication?

    For fungible or readily alterable physical evidence (e.g., drugs, blood), the proponent must show a substantially unbroken chain of custody establishing the item is in substantially the same condition as when obtained, to authenticate it as what it purports to be.

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