Evidence Flashcards

Under FRE 404(a)(2), a criminal defendant may introduce evidence of a pertinent character trait. If the defendant does so, the prosecution may then:

Answer: Rebut with reputation or opinion evidence of the defendant's bad character for that same trait

Once a criminal defendant opens the door by introducing character evidence of a pertinent trait, the prosecution may rebut with reputation or opinion evidence of the defendant's bad character for that same trait.

Under FRE 803(6), the business records exception requires all of the following EXCEPT:

Answer: The record was authenticated by an expert witness at trial

FRE 803(6) does not require expert witness authentication; a custodian or other qualified witness can lay the foundation, or a certification under FRE 902(11) may be used.

Under FRE 901, authentication of evidence requires:

Answer: Evidence sufficient to support a finding that the item is what the proponent claims

FRE 901(a) requires only evidence sufficient to support a jury finding that the item is what the proponent claims — it is a low threshold met by a preponderance of the evidence.

Under FRE 407, subsequent remedial measures evidence may nonetheless be admitted to prove:

Answer: Ownership or control, or to impeach a witness who claims no safer design existed

FRE 407 permits subsequent remedial measure evidence when offered to prove ownership, control, feasibility of precautionary measures (if controverted), or to impeach.

Under FRE 615, the rule on exclusion of witnesses (sequestration) does NOT apply to:

Answer: A party who is a natural person

FRE 615 excludes witnesses from the courtroom during others' testimony, but a party who is a natural person has a constitutional right to remain present throughout trial.

Under the Confrontation Clause of the Sixth Amendment as interpreted in Crawford v. Washington, testimonial hearsay statements by unavailable declarants are admissible only if:

Answer: The defendant had a prior opportunity to cross-examine the declarant

Crawford v. Washington held that the Confrontation Clause bars testimonial hearsay unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination.

Under FRE 801(d)(2)(E), a co-conspirator's statement is admissible as non-hearsay if the statement was made:

Answer: During the conspiracy, in furtherance of the conspiracy, by a member of the conspiracy

FRE 801(d)(2)(E) requires the statement to be made by a co-conspirator during the course of the conspiracy and in furtherance of it.