Evidence & Trial Practice Flashcards

Under FRE 702 as amended in 2023, who must establish that expert testimony meets the reliability requirements, and by what standard?

Answer: The proponent, by a preponderance of the evidence

The 2023 amendment clarifies the proponent must show it is more likely than not that the Rule 702 requirements are met.

Under FRE 703, an expert may base an opinion on inadmissible facts if:

Answer: Experts in the field would reasonably rely on such facts

Experts may rely on inadmissible data that experts in the particular field reasonably rely upon.

In a federal criminal case, an expert psychiatrist may NOT testify that:

Answer: The defendant lacked the intent required for the crime

FRE 704(b) bars experts from stating an opinion on whether the defendant had the mental state constituting an element of the crime.

Under FRE 1003, a photocopy of a contract is admissible to the same extent as the original unless:

Answer: A genuine question is raised about the original's authenticity or admitting the duplicate would be unfair

Duplicates are admissible unless authenticity is genuinely questioned or circumstances make it unfair.

Which item is NOT self-authenticating under FRE 902?

Answer: A photograph of an accident scene

Photographs require extrinsic authentication, typically testimony that they fairly and accurately depict the scene.

A client consults a lawyer for help structuring a transaction the client intends to use to defraud investors. The communications are:

Answer: Not privileged under the crime-fraud exception

The crime-fraud exception removes protection when the client seeks advice to further a future crime or fraud.

Under Trammel v. United States, in federal criminal cases the privilege against adverse spousal testimony belongs to:

Answer: The witness spouse

Trammel held that the witness spouse alone may refuse to testify adversely and cannot be prevented from testifying.