Bar--Evidence Flashcards
Spousal Immunity
A spouse cannot be compelled to testify about anything the defendant spouse.
- ends when divorced.
CRIMINAL CASES ONLY
Witness spouse holds the privilege and may waive it
Confidential Communications Between Spouses
Civil and Criminal Cases–a spouse is not required—any may not absent permission of other spouse–disclose a confidential communication (statements or acts) made by one to the other during the marriage. Both spouses hold the privilege.
- survives the marriage
- does not apply if revealed part to friend—> no longer confidential
Business Records Exception
- made in regular course of business
- the regular practice of business to make the record at the time of the event
- made by person who had duty to make it and who had personal knowledge
Clergy-Penitent Privilege
A person has a privilege to refuse to disclose, and prevent others from disclosing a confidential communication by that person to a member of the clergy in the clergy member’s capacity as a spiritual advisor
NO privilege if statement to clergy in a normal convo
When can the testimony of a now unavailable be admitted at a subsequent trial?
Testimony of a now unavailable W given under oath at another hearing is admissible in a subsequent trial as long as there is sufficiently similarity of parties and issues so that the opportunity to X examine at prior hearing was meaningful.
Is testimony of a W during a trial admissible pursuant to public records!
No! Only fact of conviction
Statement Against Interest
Statements of a now unavailable W against pecuniary, propriertary or penal intetest are admissible.
Evidence of INsurance
Evidence of liability not admissible to show negligence, but evidence casualty insurance is
Patient Doctor Privilege in Federal Court
DOES NOT APPLY
Prior Inconsistent Statement–Grand Jury
Prior inconsistent statement made under penalty or perjury at a prior trial or proceeding, including Grand Jury, is admissible non-hearsay and can be used for substantive OR impeachment.
Is GJ transcript of W not testifying at current trial admissible
No–hearsay not within any exception
Are records of convictions admissible? If so when?
Yes–they are hearsay but fall under rule for exception for records of felony conviction.
Judgments of felony convictions are admissible in both civil and criminal trials to prove an y fact essential to judgement., whether judgement arose after trial or guilty plea.
Limitations on Right to Cross Examine
Scope of cross is a matter of judicial discretion.
Judge may limit x to avoid waste of time, protect W from harassment, or undue embarrassment
Judge may stop cross when “it determines there has been an adequate opportunity for meaningful cross examination”
Past Recollection Recorded
Exception to hearsay–W unavailability NOT required
Must show
i–W at one time had PK of facts, ii. the writing was made by or under the direction of the W or has been adopted by her. iii. writing was timely made when it was fresh in mind iv. writing is accurate v, W had insufficient recollection to testify fully and accurately
Patient Doctor Privilege
Doctor must be a licenced physician- (or P must reasonable believe she is) -present for purpose of treatment, info be obtained while attending patient, info was neccessary for treatment
Parol Evidence Rule
Where an agreement is fully integrated–all prior or conemp negotations or agreements are merged into written agreeement–cant show extrinisc evidence to change or altar.
But–PE is allowed to show that contract was in fact void-to show fraud, duress, unde influent inducing concent.
Expert W Qualification
Qualification of an expert witness is determined by the judge–Judge may consider any relevant evidence in making this determination–
Learned Treatise
statements from a learned treatise are admissible to impeach and as substantive evidence.
Reliability of the treatise can be established by 1. direct testimony or cross/admission by W 2. testimony of another W, 3. Judicial notice.
Can you impeach testimony with other testimony that does not directly contradict it but merely casts doubt?
Yes.
Chain of Custody
Where evidence is of a type likely to be confused or tampered with, propronent of the evidence must present evidence of chain of custody.
Must show that object has been held in substantially unbroken chain of custody –need not negate all possibilities of substittuion or tampering–just adherence to some system of ID and custody.
Relevance
any tendency to make a material fact more probable or less probable than would be the case w/o the evidence
all relevant evidence admissions unless exclusionary rule or court makes determination that probative value outweighted by
unfair prejudice confusion of issues misleading jury undue delay waste of time unduly cumulative
admissibility of similar accidents caused by same instrumentality or condition
not admissible to show general character for carelessness
yes admissible to show
1. existence of dangerous condition
2. causation f accident
or 3. prior notice to D
Habit
Habit is a repetitive response to a particular set of circumstances. Defined by frequency of conduct, particularity of conduct.
always, never, invariable, automatically, instinctively
When is evidence of insurance admissible?
To show a) proof of ownership/control of instrumentality or location–WHERE DISPUTED
or for impeaching a W
When are subsequent remedial measures admissible?
ownership/control/feasibility of safer conditions if IN DISPUTE
When are offers to settle/offers to pay medical expenses/facts in those discussions admissible?
Settlement offers/facts stated during settlement discussion:
–>n/a for showing liability of impeaching
- ->offer of settlement admissible to impeach for bias
- ->Facts admissible in civil litigation with a government regulatory agency in a later criminal case.
Offer to pay medical expenses inadmissible. but statements made in connection can be admitted.
Admissibility of Guitly PLeas?
offers, withdraws, nolo condere, statements= n/a
GUILTY plea is admissible as party admission
Character Evidence in Criminal Cases
- P may not use character evidence (CE) during chief
- D may introduce evidence of relevant character trait by reputation or opinion evidence to prove his conduct—but this OPENS door to rebuttal by P. N.B honest is not relevant to most crimes except perjury etc.
- Where D presents evidence of a good trait, P may rebut by cross examination Qs about specific bad acts, or by calling reputation/opinion witnesses.
- D may introduce evidence of victims violent character as evidence that she was first aggressor, to prove self defense….
a. …..but in response P may show victim’s character for peacefulness, and may prove D’s character for violence.
b. …..any D may show his knowledge of V’s reputation for violence to help prove he was justified in thinking she was agressor. - Rape shield law—-(criminal and civil) d cant introduce opinion or reputation evidence about V’s sexual propensity, or evidence of specific sexual behavior —except (criminal)
a. specific sex behavior to someone else was source of semen
b. with D, to show she consented
c. exclusion is violation of DP—love triange - Evidence of prior bad acts are never admissible to show that he acted unlawfully again, may be admissible to prove MIMIC, unless judge determines prejudice/probative.
a. Motive, intent, mistake (lack of), identity, common scheme (without conviction!)
b. May be deemed inadmissible by 403.
c. Method of proof–by conviction—>or conditional relevancy—enough evidence from which reasonable juror could conclude that D committed the other crime. - If D testifies, he automatically places character trait of truthfulness at issue and P can present evidence that he is not a truthful person
