Comprehensive Flashcards
With respect to preliminary questions of admissibility, what is the burden of persuasion?
must convince the judge/jury by preponderance of evidence
When is habit evidence admissible
to prove that the person acted in accordance with their habit on a particular occasion
What five hearsay exceptions only apply when the hearsay declarant is unavailable?
(1) Former testimony;
(2) Dying declaration;
(3) Statement against interest;
(4) Statement of personal or family history;
(5) Statement offered against a party that wrongfully caused the declarant’s unavailability
When may the prosecution offer evidence of an alleged victim’s good character in a criminal case?
- when D introduced evidence of V’s bad chacater
- when evidence of peaceful character can rebut accusation that V was first aggressor
When is a witnesses not excluded from the courtroom to prevent them from hearing the testimony of other witnesses?
- a party
- a party allowed by statute (victim)
- a party who’s presence is neccessary
- who’s been designated as a party’s rep
When may a judge take notice of an adjudicative fact?
The fact is not subject to reasonable dispute
At what time can a court take judicial notice?
Judicial notice can be taken at any time during a proceeding, including on appeal, whether upon request of a party or by the court’s own initiative
What are the present sense impression and excited utterance hearsay exceptions? Distinguish them
Present Sense Impression: A statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it
Excited Utterance: A statement made about a startling event or condition while the declarant is under the stress of excitement that it caused
A present sense impression must be a description of the event, whereas an excited utterance need only relate to the exciting event.
How may a party to a telephone conversation authenticate statements made during that conversation as having been made by a particular individual?
By testifying that:
(i) The caller recognized the speaker’s voice;
(ii) The speaker knew facts that only a particular person would know;
(iii) The caller dialed a number believed to be the speaker’s, and the speaker identified himself upon answering; or
(iv) The caller dialed a business and spoke to the person who answered about business regularly conducted over the phone.
What does the best evidence rule require, and what are its exceptions?
If the contents of a document are at issue, or a witness is relying on the contents of the document, the best evidence rule requires that the original document be produced to prove its contents, unless:
(i) All of the originals are lost or destroyed, and not by the proponent acting in bad faith;
(ii) The original cannot be obtained by any available judicial process;
(iii) The party against whom the original would be offered (a) had control of the original, (b) was on notice that the original would be the subject of proof, and (c) failed to produce it at the trial or hearing; or
(iv) The document is not closely related to a controlling issue
What are three ways in which tangible evidence (e.g., murder weapon) may be authenticated?
- By testimony of personal knowledge of the object;
- By testimony of its distinctive characteristics;
- By chain of custody when a physical object that could easily be tampered with or confused with a similar item (e.g., a blood sample)
What are three instances in which specific acts are admissible in criminal cases?
- When character is an essential element of a charged crime and a defendant offers specific acts inconsistent with the crime;
- For non-propensity purposes (e.g., “MIMIC” evidence (Motive, Intent, absence of Mistake, Identity, or Common plan)); and
- When a character witness is asked on cross-examination about specific acts committed by the person about whom the witness is testifying
What are five non-hearsay uses for out-of-court statements (i.e. uses that prove something other than the truth of the matter asserted)?
A statement is non-hearsay if offered:
(1) To prove that the statement was made (i.e., as legally operative fact);
(2) To show the effect on the recipient;
(3) As circumstantial evidence of the declarant’s state of mind;
(4) As circumstantial evidence of identity; or
(5) Solely to impeach or rehabilitate.
D’s prior crimes/bad acts are admissible if used for non-character evidence such as:
MIMIC
Motive
To show purpose for committing charged crime
Intent
To establish guilty mind or negate good faith
Absence of Mistake
To negate mistake or accident & prove deliberate act
Identity
To connect defendant to crime with unique pattern of behavior (ie, criminal signature)
Common plan or scheme
To show preparation or planning
Other
To show knowledge of crime, opportunity to commit crime, consciousness of guilt, etc
when is evidence admissible for impeachment?
- intrinsic
- extrinsic
intrinsic - anytime
extrinsic - only when witness has opportunity to explain or deny and other party can examine the witness
can a defendant waive privilege of immunity from plea negotiations being used against him?
yes, if knowingly and voluntarily
specific acts can be introduced as extrinsic or intrinsic?
- felony or crime about dishonesty
- bad acts
felony or crime about dishonesty -> extrinsic allowed
bad acts -> only intrinsic allowed
criminal defendant’s prior bad acts or crime is admissible? if so, when?
generally not admissible unless for some other purpose (MIMIC)
rebuttable presumption
if one party produces evidence that a fact occured, then there’s a presumption for it. If the opposing party produces evidence that contradicts, such presumption “bursts” and the jury must weigh the evidence and find the facts
Any item may be used to refresh a witness’s memory when (1) the witness once had personal knowledge of a matter but is now unable to recall it and (2) the item will help the witness recall that matter
to authenticated an x-ray image, must prove:
the process for creating the evidence was accurate
the machine that produced the evidence was working properly and
the operator of the machine was qualified to operate it
what’s one limitation on authenticating a hand writing by a lay witness with personal knowledge?
must not acquire handwriting knowledge in prep for litigation
when the relevance of evidence depends on whether a fact exists, proof must be introduced to allow the court to determine whether the jury could reasonably find the conditional fact by a preponderance of the evidence.
However, the court may admit the proposed evidence on the condition that such proof be introduced later.
