Evidence Flashcards

Under FRE 501, which privilege governs in a federal civil action where a state-law claim and a federal claim are both at issue?

Answer: State privilege law applies to the state claim, and federal common law applies to the federal claim

FRE 501 provides that in civil actions where state law supplies the rule of decision, state privilege law applies. When a federal claim and state claim are joined, courts generally apply federal common law privilege to the federal claim and state privilege law to the state claim — applying the law of the element of the claim for which the communication is offered.

The attorney-client privilege protects communications made in confidence. Which of the following would NOT be protected by the privilege?

Answer: A client's description of a future crime he plans to commit and wants the lawyer's help in carrying out

The crime-fraud exception removes the attorney-client privilege when a client seeks the lawyer's assistance to commit or facilitate a future crime or fraud. The privilege protects legitimate legal advice about past conduct, not plans for future criminal activity.

Under FRE 803(8), public records are a hearsay exception. Which of the following would be EXCLUDED under FRE 803(8) in a criminal case?

Answer: Police and law enforcement reports offered against the accused regarding matters observed by law enforcement officers

FRE 803(8)(A)(ii) excludes from the public records exception matters observed by law enforcement personnel when offered against the accused in criminal cases. The rationale is that police reports prepared in an adversarial context lack the reliability warranted by the exception and raise Confrontation Clause concerns.

Under FRE 609, a prior felony conviction may be used to impeach a testifying defendant in a criminal case if:

Answer: The conviction is less than 10 years old and the court finds that the probative value of the evidence outweighs its prejudicial effect to the defendant

Under FRE 609(a)(1)(B), when the witness is a criminal defendant, a prior felony conviction is admissible only if the court determines that the probative value of the evidence outweighs its prejudicial effect to that defendant — a more favorable standard for defendants than the usual 403 test. Under 609(b), convictions more than 10 years old are subject to an even stricter balancing test.

Under the Confrontation Clause as interpreted in Crawford v. Washington (2004), which out-of-court statement may NOT be admitted against a criminal defendant without the declarant being available for cross-examination?

Answer: A formal written statement given to police after being transported to the police station, describing what happened during the crime

Crawford v. Washington (2004) held that 'testimonial' statements — those made in circumstances suggesting they would be used at trial — trigger the Confrontation Clause and require the declarant to be available for cross-examination or previously subject to cross-examination. A formal station-house statement made after the emergency is the paradigmatic testimonial statement.

Under FRE 106, the 'rule of completeness' requires that when a party introduces a written or recorded statement, the opposing party may require:

Answer: Any other part of the writing or recording, or any other writing or recording, that fairness requires to be considered at the same time

FRE 106 (the rule of completeness) provides that if a party introduces part of a writing or recorded statement, the opposing party may require introduction at that time of any other part — or any other writing or recording — that fairness requires to be considered at the same time. The 2023 amendment extended the rule to oral statements as well.