Basic Principles of Evidence Flashcards
Can a party can introduce relevant exhibits as evidence in trial even if the items are not established as authentic?
False:
To be admissible as evidence at trial, exhibits must be relevant. In addition, at the most basic level, evidence must also be established as reliable or authentic. Thus, evidence, other than testimonial evidence, must be properly authenticated; that is, the party offering the evidence item must produce some evidence (e.g., testimony from a person with firsthand knowledge) to show it is, in fact, what the party says it is and to show it is in the same condition from the moment it was seized until it is used in court. If a piece of real evidence cannot be authenticated, the evidence will not be admitted even if it is plainly relevant
Best Evidence Rule
Sometimes testimony may be excluded because of the best-evidence rule, which prohibits a party from testifying about the contents of a document without producing the document itself. This rule, however, only applies when an original or copy is being used to prove the contents of a writing, and it does not demand that a party produce the very best evidence to prove a fact in dispute.
Also known as the original-writing rule, the best-evidence rule provides that when a witness testifies about the contents of a document, at least a fair copy of the original must be available for inspection. If there is no original, a copy of the proven authentic document will do, but the court must be assured that the copies are reliable and accurate. If the document is lost—no original, no copies—the judge will have to be convinced that there is good reason to forgo the exhibit and admit the testimony.
In general, authentication of a writing consists of …
In general, authentication of a writing consists of establishing who authored the document. Depending on the document and situation, this is done in one of several ways: 1) the author testifies and claims authorship; 2) a witness testifies to seeing the author write the document; 3) with handwritten letters, a witness verifies the author’s penmanship; 4) with typed or machine-written documents, the witness verifies the author’s signature; 5) a witness testifies that the contents of the document point decisively to the author. These and many other document issues might require the participation of a questioned documents expert.
work product doctrine
Work product protection applies only to documents and things prepared in anticipation of litigation or for trial.
Documents and tangible things prepared in the course of an in-house or other pre-litigation investigation, even if at the direction of an attorney, may not be privileged if they were not prepared in anticipation of litigation. Just because there is a possibility of future litigation does not mean that the investigation is in anticipation thereof. Litigation must be actually planned and the work for which protection is sought must have been undertaken for the specific purpose of preparing for that litigation.
However, if the work to be protected was done in anticipation of litigation, then it does not matter in most jurisdictions that no lawsuit has been filed yet.
Ways an attorney might impeach a witness
Impeachment is the practice of bringing out matters that attack a witness’s credibility. There are numerous ways an attorney might impeach a witness, but the most common ways include efforts to show that the witness: • Is influenced by bias or self-interest • Has an impaired ability to observe • Made prior inconsistent statements • Has been convicted of a felony • Has a reputation for untruthfulness
Can evidence of other crimes committed by a defendant in a criminal action is usually admissible to prove that the defendant is generally a bad person, and therefore is likely to have committed the crime with which he is charged?
False:
Evidence that the accused has committed other crimes is not usually admissible to prove that the defendant is generally a bad person, and therefore is likely to have committed the crime with which he is charged. But such evidence may be admitted to show something else, such as proof of motive, opportunity, or intent to commit an act.
There are two basic types of admissible evidence
There are two basic types of admissible evidence: direct evidence and circumstantial evidence. Direct evidence is evidence that tends to prove or disprove a fact in issue directly, such as eyewitness testimony or a confession. Circumstantial evidence is evidence that tends to prove or disprove facts in issue indirectly, by inference.
Rule 404(b) of the Federal Rules of Evidence, evidence of other crimes, wrongs, or acts
Under Rule 404(b) of the Federal Rules of Evidence, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person. In other words, such evidence is not admissible to prove that the defendant is generally a bad person, and therefore is likely to have committed the crime with which he is charged.
However, there are some uses of character evidence that may be admissible because they are offered for a purpose other than showing character. One such exception is using such evidence to show that the accused had the ability and means of committing the crime (possession of a weapon, tool, or skill used in the commission of the act).
When is the attorney-client privilege is not absolute; it is subject to waiver?
The attorney-client privilege is not absolute; it is subject to waiver. Because the attorney-client privilege does not protect communications disclosed to outside parties, the privilege will be waived if confidential communications are disclosed to a third party whose role has little to do with the client’s pursuit of legal representation.
Generally, waiver occurs when the client, who holds the privilege, voluntarily discloses (or consents to or encourages someone else disclosing) any significant part of the privileged communications. Although the client holds the privilege, the privilege can also be waived by the client’s attorney or a third party (someone who is neither the attorney nor the client).
Although the attorney-client privilege only applies to confidential communications between an attorney and his client, the privilege extends to communications with third-party consultants hired to help provide legal advice to the client (e.g., fraud examiners, accountants, bankers, or other expert). Thus, waiver does not occur when an attorney shares privileged information with an outside consultant hired in a role that concerns the client’s pursuit of legal representation and when the communication was made for the purpose of effectuating legal representation for the client. But when privy to privileged information, such consultants can waive the client’s privilege.
Basic forms of evidence:
There are three basic forms, as distinguished from types, of evidence: testimonial, real, and demonstrative. A photograph can be either demonstrative evidence or real evidence. Real evidence describes physical objects that played a part in the issues being litigated. The term includes both documentary evidence—such as canceled checks, invoices, ledgers, and letters—as well as other types of physical evidence. Demonstrative evidence is a tangible item that illustrates some material proposition (e.g., a map, a chart, or a summary).
Accordingly, a photograph can be real evidence if it was part of the underlying event, or it can be demonstrative evidence if it was created specifically for the trial.
