BARBRI evidence Flashcards
statements by an opposing party
- statement need not have been made against interest when made
- D need not have personal knowledge of facts
- D need not be unavailable
- D must be a party
hearsay exception - unavailability required
- statements against interest
- statement must have been against interest when made
- D must have personal knowledge of facts
- D must be unavailable
- D need not be a party
hearsay exception - unavailability required
- former testimony
- statement made under oath
- at same or at other proceeding
- at which the party against whom it is offered had motive and opportunity to develop testimony
hearsay exception - unavailability required
- dying declaration
- statement made while D believed death was imminent
- concerning the cause or circumstances of the impending death
hearsay exception - unavailability required
- statement of personal or family history
- statement of personal or family history (ex: birth, death, marriage)
- made by family member or one intimately associated with the family
hearsay exception - unavailability required
- statement offered against party procuring D’s unavailabilty
- statement of unavailable D
- offered against party who procured D’s unavailability
unavailability
- exempt from testifying because of privilege
- refuses to testify concerning the statement despite a court order
- testifies that he does not remember the subject matter
- unable to testify due to death or physical or mental illness
- absent (beyond the reach of a subpoena) and the proponent is unable to procure his attendance by reasonable means
spousal immunity
- 1 spouse cannot be compelled to testify against the other spouse in any criminal proceeding
- only the witness-spouse may invoke spousal immunity
- privilege can be claimed only during marriage but covers info learned before and during marriage
confidential marital communication
- communications made in reliance upon the intimacy of the marital relationship are privileged
- applies in both civil and criminal
- both spouses have privilege not to disclose, and to prevent the other from disclosing
- survives the marriage, but covers only statements made during the marriage
admissible opinion of lay witnesses
- general appearance or condition of a person
- “he was about 80 years old”
- “she seemed ill”
admissible opinion of lay witnesses
- state of emotion
- “she was angry”
- “he was distraught”
admissible opinion of lay witnesses
- matters involving sense recognition
- “the suitcase was heavy”
- “he smelled of garlic”
admissible opinion of lay witnesses
- voice or handwriting ID (foundation required)
- “it sounded like Mark”
- “that’s Fran’s handwriting”
admissible opinion of lay witnesses
- speed of moving object
“the truck was going very fast”
admissible opinion of lay witnesses
- value of own services
“my time is worth $50/hour”
admissible opinion of lay witnesses
- rational or irrational nature of another’s conduct
“he was acting crazy”
admissible opinion of lay witnesses
- intoxication
“she was slurring her words and smelled of gin - she was drunk”
present recollection refreshed
- any writing may be used to refresh a W’s memory
- W cannot read from the writing while testifying
- no hearsay problem because the writing is not offered into evidence
past recollection recorded
- only a writing that meets several foundational requirements (ex: timely made by W, W cannot remember the events after reading the writing) may be used
- writing itself is read into evidence
- this is hearsay but it falls within a specific exception to the hearsay rule
past recollection recorded
- W at one time had personal knowledge of the facts in the writing
- writing was made by the W or under her direction or it was adopted by the W
- writing was timely made when the matter was fresh in the W’s mind
- writing is accurate AND
- W has insufficient recollection to testify fully and accurately
valid excuses justifying the admissibility of secondary evidence
- loss or destruction of original
- original is in the possession of a 3rd party outside the jurisdiction and is unobtainable
- original is in the possession of an adversary who after due notice fails to produce the original
ancient documents may be authenticated by evidence that it…
- is at least 20 years old
- is in such condition as to be free from suspicion as to authenticity AND
- was found in a place where such a writing would likely be kept
liability insurance is inadmissible to prove…
- negligence
- ability to pay
liability insurance is admissible to prove…
- ownership or control
- impeachment
- part of an admission of liability
subsequent remedial measures are inadmissible to prove…
- negligence
- culpable conduct
- defect in product or its design
- need for warning or instruction
subsequent remedial measures are admissible to prove…
- ownership or control
- rebut a claim that precautions were impossible
- to prove destruction of evidence
settlement offers or negotiations are inadmissible to prove…
to prove or disprove the validity or amount of a disputed claim
settlement offers or negotiations are admissible to prove…
for all other purposes
withdrawn guilty pleas and offers to plead guilty are inadmissible to prove…
for nearly all purposes
withdrawn guilty pleas and offers to plead guilty are admissible to prove…
not admissible
offers to pay and payment of medical expenses are inadmissible to prove…
culpable conduct
offers to pay and payment of medical expenses are admissible to prove…
for all other purposes
habit
- a person’s regular response to a specific set of circumstances (frequency of conduct)
- may be admitted to prove that on a particular occasion the person acted in accordance with the habit
character
- one’s disposition in respect to general traits
- character evidence generally inadmissible to prove conduct in conformity
similar accidents caused by same event or substantially similar circumstances may be admitted to show…
- existence of dangerous condition
- causation
- prior notice to ∆
industrial custom as standard of care
evidence as to how others in the same trade or industry have acted in the recent past may be admitted as some evidence as to how a party in the instant litigation should have acted
exclusionary rule as to settlements
applies if there is a claim that is disputed (at the time of settlement discussion) either as to
- validity OR
- amount of damages
potential purposes for the admissibility of character evidence
- person’s character is a material element in the case
- character evidence to prove conduct in conformity with character at the time of the litigated event, aka character as circumstantial evidence of conduct on a particular occasion
- W’s bad character for truthfulness to impeach credibility
how can a criminal ∆’s relevant character trait be introduced into evidence
- by defense to prove conduct in conformity
- serves to open the door to rebuttal by prosecution
character evidence is admissible through a character W to prove conduct in conformity via
- reputation
- opinion testimony
prosecution’s rebuttal on character evidence may ask questions about
- specific acts of the ∆ that reflect adversely on the particular character trait that ∆ has introduced
- use the form of “did you know,” “have you heard”
ordinarily inadmissible in sexual misconduct case
- opinion or reputation evidence about the victim’s sexual propensity OR
- evidence of specific sexual behavior of the victim
TX character evidence is admissible in civil cases when…
civil ∆ is accused of conduct involving moral turpitude
- evidence of good character may be introduced
moral turpitude is a crime involving
grave infringement of community sentiment
- dishonesty
- violence
- sexual misconduct
evidence of person’s character is admissible in civil actions where such character is…
- an essential element of a claim or defense
- provable by reputation, opinion, and specific acts
- applies to negligent hiring/entrustment and defamation
∆’s other crimes for non-character purpose may be admitted as bearing on guilt if used to prove…
- motive
- intent
- mistake or accident, absence of
- identity (can include closeness in time)
- common scheme or plan
method of proof for MIMIC-purpose crimes
- conviction
- by evidence that proves the crime occurred
- prosecution need only produce sufficient evidence from which a juror might conclude that ∆committed the other crime
authentication in general
- W’s personal knowledge
- proof of handwriting (may use lay or expert opinion, or jury comparison)
- ancient document rule
- solicited reply doctrine
self-authenticating documents (no need for foundation testimony)
- official publications
- certified copies of public or private records on file in public offices
- newspapers or periodicals
- trade inscriptions and labels
- acknowledged document
- commercial paper
TX rule of self-authentication for business records
1) affidavit by custodian capable of testifying that the record qualifies for the business records hearsay exception
2) business records hearsay exception is satisfied
3) original or exact duplicate of the business record is attached to the affidavit
4) notice to other parties
best evidence rule
in order to prove the contents of a writing, recording, or photo, an original must be produced… applies primarily:
- if the writing is a legally operative document
- W is testifying to facts that she learned solely from reading about them in a writing
when best evidence rule does NOT apply
when a W with personal knowledge testifies to a fact that exists independently of a writing which records the facts
escapes from best evidence rule
- voluminous records: can be presented in summary chart
- certified copies of public records
- collateral documents: not important enough to require original
juror may not testify
- in same case in which sitting as a juror as to any matter OR
- in any other case to statements made in deliberation or the effect anything had on deliberations
- BUT MAY testify as to any outside influences and extraneous prejudicial information
TX dead man’s rule - interested W incompetent if
- civil action by or against decedent’s estate, or by or against decedent’s heirs or legal representatives
- either party to action seeks to testify to oral statement made by decedent
TX dead man’s rule - when party may testify to decedent’s oral statement
- decedent’s oral statement is corroborated by other evidence OR
- incompetent party is called by adverse party to testify concerning decedent’s oral statement
leading questions permitted
- preliminary/introductory matters
- youthful/forgetful W
- hostile W
- adverse party
expert testimony basis
must be based on reasonable degree of probability or certainty:
- personal knowledge
- other evidence in the trial record made known to the expert by hypothetical question
- facts outside the record if of a type reasonably relied upon by experts in the particular field forming opinions
FEDERAL: principal factors to determine reliability of principles used by experts to reach opinion
- Testing of principles
- Rate of error
- Acceptance by other experts in same discipline
- Peer review and publication
TEXAS: principal factors to determine reliability of principles used by experts to reach opinion
- Testing of principles
- Rate of error
- Acceptance by other experts in same discipline
- Peer review and publication
- Objective v. subjective interpretation of data
- Non-judicial use of principle
ultimate issue
opinion testimony is permissible even if it addresses the ultimate issue in a case EXCEPT for direct opinion on relevant mental state
cross examination scope in Fed and TX
Fed - matters within scope of direct exam AND - matters that test the W's crediblity TX - not limited to scope of direct exam - may question anything relevant
prior ID of a person
NOT hearsay
- labeled as an exclusion from hearsay
impeachment methods
1) prior inconsistent statements
2) bias, interest, motive to misrepresent
3) sensory deficiencies
4) bad reputation or opinion about W’s character for truthfulness
5) criminal convictions
6) bad acts (without conviction) that reflect adversely on W’s character for truthfulness
7) contradiction
must W be confronted with her prior inconsistent statement while still on the stand or may it be proven later with extrinsic evidence
TX
- confrontation on stand generally required
Fed
- confrontation timing is flexible
Fed rule on criminal convictions to impeach
- conviction of any crime involving false statement or dishonesty
- if conviction is for a felony (balance probative value with danger of unfair prejudice)
- conviction or release from prison, whichever is later, generally must be within 10 years of trial
TX rule on criminal convictions to impeach
- felonies of any type
- crimes of moral turpitude
- balancing of impeachment value against potential prejudice applies to all convictions
- cannot use conviction to impeach if appeal is pending
a prior felony conviction not involving dishonesty is admissible against a criminal defendant if what standard is met?
the probative value outweighs the prejudicial effect
a party may bolster the testimony of his own W….
after the W has been impeached
a W may be impeached with evidence of her prior felony conviction even if….
she is currently appealing the conviction
under what circumstances is a prior consistent statement of a W admissible
when the W has been impeached by a charge that the W is lying because of some motive, and the prior consistent statement was made before that motive existed
if a hearsay D’s statement is admitted at trial, do the FRE allow impeachment of that statement even though the D is not present?
yes, in the same manner as if the D had testified
before a PINS can be proved by extrinsic evidence, 2 requirements must be met…
- foundation
- relevance
to impeach a criminal accused with his prior felony conviction that does not involve dishonesty or false statement, the government must show…
the conviction’s probative value as impeachment evidence outweighs its prejudicial effect
on cross, defense counsel asks the W about a prior bad act, W denies committing the act, defense counsel may…
continue the cross in good faith in the hope that the W will change his answer
if hearsay D’s statement is admitted at trial and the D does not testify, the credibility of that W may be attacked by…
any evidence that would have been admissible had the D testified at trial
