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Evidence > Documentary Evidence and Witnesses > Flashcards

Documentary Evidence and Witnesses Flashcards

1
Q

Authentication

A

All evidence, other than testimony, must be authenticated. Authentication is proof the item is what the proponent claims it is.

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2
Q

How can a handwriting be authenticated?

A
  1. Handwriting expert
  2. Layperson already familiar with the persons handwriting
  3. Handwriting exemplars shown to jury
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3
Q

How can a handwriting be authenticated?

A
  1. Handwriting expert
  2. Layperson already familiar with the persons handwriting
  3. Handwriting exemplars shown to jury
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4
Q

How can real evidence/Physical Evidence (gun, drug etc) be authenticated?

A
  1. Distinctive characteristics
  2. Chain of custody OR
  3. Personal knowledge
  4. Comparison (By expert or trier of fact)
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5
Q

How can real evidence (gun, drug etc) be authenticated?

A
  1. Distinctive characteristics
  2. Chain of custody OR
  3. Personal knowledge
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6
Q

What are exceptions to the BER?

A

The BER will not bar admission of evidence if
1. Its a duplicate
2. Proof of unavailability: If original unavailable, then oral testimony or other evidence admissible to prove the contents of the writing
3. Testimonial evidence (Witness has first hand knowledge. Eg shipping address)
4. Collateral matter
5. Summary of voluminous record
6. Public Record

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7
Q

Rule of completeness

A

When a party introduces part of a writing or recorded statement, the other party may require the introduction of any other part to establish the full context

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8
Q

Absence of Entry (BER)

A

Records can be admitted to show the absence of an entry to prove the nonoccurrence of the event.

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9
Q

When is the ONLY time BER applies?

A

When a party is trying to prove the CONTENTS of a writing

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10
Q

Can a presiding judge testify?

A

Under FRE NO!

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11
Q

When is a juror allowed to testify under the FRE?

A

Jurors can testify for the limited person of identifying whether
1. Improper outside influence was bought in
2. Improper extraneous prejudicial information, or
3. Error on the verdict form

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12
Q

Present Recollection Refreshed

A

Technique that allows any item (photo, report, notes) to be used to refresh a witness’s memory. W can only testify from their refreshed memory.

Remember that it is NOT evidence unless adversary brings it in

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13
Q

Present recollection refreshed: Adversary’s right to inspect and admit

A

-Item used to refresh W WHILE testifying: Adversary can inspect item, cross examine, and admit pertinent portions into evidence

-Item used BEFORE testifying: Right is at courts discretion.

PROPONENT CANNOT ADMIT ITEM INTO EVIDENCE UNLESS ITS OTHERWISE ADMISSIBLE.

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14
Q

Expert Opinion

A

Expert Opinion is testimony by a person qualified as an expert in their field. Expert testimony admissible if:
1. Helpful to jury
2. Expert is qualified
3. Reasonable certain opinion
4. Opinion supported by a proper factual basis
5. Reliable principles and methods

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15
Q

Marital Privileges: What are the two types?

A

Spousal immunity and Marital confidential communications

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16
Q

What are the different ways to offer character evidence?

A

Opinion, reputation, specific instances of conduct

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17
Q

What type of character evidence is allowed on direct examination?

A

Reputation or opinion!

18
Q

Character evidence on cross examination rule

A

A party may use Specific instance of conduct, reputation and opinion

19
Q

Character evidence is not admissible to prove conduct in conformity. What are the limited circumstances in which character evidence can come in though?

A

D opens the door, D is claiming self defense, Exceptions apply, rape shield, habit evidence

20
Q

How can D open the door to his character?

A
  1. He introduces evidence of his own character
  2. D opens door by introducing evidence of victims character
21
Q

How can D properly introduce evidence of his own character trait?

A
  1. D offers the evidence (can be himself or witness D calls W)
  2. Evidence is regarding D character trait
  3. Character trait offered is RELEVANT to current charges
  4. Evidence is in the form of OPINION or REPUTATION testimony
22
Q

Defendant has introduced evidence of his character. How can the prosecution respond?

A
  1. Cross examine the defendants character witness
    -Reputation or opinion
    -Can inquire about specific bad acts if asked in
    good faith
    -NO EXTRINSIC EVIDENCE
  2. Call their own witness
    -The new W is on direct. Reputation or opinion
    evidence only.
23
Q

Character evidence “other purposes”

A

Intent
Preparation
ID
Knowledge
Absence of mistake
Motive
Opportunity
Plan or scheme

IPIKAMOP

24
Q

Nonfalsi crime + Within 10 years. Allowed?

A

Allowed if the probative value is greater than the prejudicial effect.

If it is the same or similar crime, then the court likely won’t let it in bc its too prejudicial

25
Q

7 Methods of Impeachment

A
  1. Bias/Motive
  2. Sensory or mental defect
  3. Contradiction
  4. PIS
  5. Conviction
  6. Prior bad acts regarding truthfulness
  7. Calling own witness

Triple [CCC BS P]ill

26
Q

Extrinsic evidence of a prior inconsistent statement is allowed when….

A

The witness has or had an opportunity to explain or deny the alleged inconsistent statement

[EXCEPTION: If PIS is coming in under a hearsay exception, then we might allow extrinsic evidence]

27
Q

NonHearsay

A
  1. Declarant SOM
  2. Effect on Listener
  3. Legally operative fact

Hint: SEL. Studying Every Law

28
Q

Hearsay Exemptions

A

Prior statements and Party admissions

29
Q

Recorded Recollection

A

Declarant availability immaterial.

Allows record to be read into evidence if

  1. Concerns a matter W once knew but cannot recall
  2. Was made or adopted by W when the matter was fresh in her mind
  3. Personal Knowledge

Notes: Can be voice recording, can be played to jury.

30
Q

Declarant Unavailable Exceptions

A

Statement against interest
Former testimony
Dying Declaration
Forfeiture

31
Q

Hearsay Exceptions: Declarant availability immaterial

A

Present Sense Impression
Excited Utterance
Statement for Medical Diagnosis
Then existing state of mind

PEST! Witnesses are PESTs so it doesn’t matter if they are here or not.

32
Q

Present Sense Impression

A

Declarant availability immaterial

  1. Describes an event
  2. Made WHILE declarant is perceiving it or immediately after
33
Q

Excited Utterance

A

Declarant availability immaterial

  1. Relating to a startling or exciting event
  2. Made while declarant is still under the stress of such event
34
Q

Privilege against self incrimination

A

Allows W to refuse to testify if the witness’s testimony will subject W to possible charges.

35
Q

Hearsay Exception for Absence of Public Records

A

Testimony by a public official that a diligent search failed to disclose a public record is admissible to prove
1. The record does not exist or the matter did not occur

IF the public office regularly kept records for a matter of that kind :)

36
Q

Federal Inadvertent Waiver Rule

A

Disclosure of communication protected by the a/c privilege or work product does not operate as a waiver if

-Disclosure made in federal proceeding
-Inadvertent
-Reasonable steps to prevent disclosure AND
-privilege holder took reasonable steps to rectify

EX: Defense Lawyer inadvertently, despite reasonable efforts, releases privileged material. Case is in federal court for diversity jdx. It is not waived and still protected!

37
Q

Learned Treatise Hearsay Exception

A

A statement in publication is admissible substantively if
1. Statement is called to the attention of, or relied upon, by an experty during examination AND
2. The publication is established as reliable authority by any party’s expert or judicial notice

Ex: Malpractice case. Plaintiff has expert witness who testifies to SOC. Defendant cross examines and asks her to read to the jury passages from the treatise on SOC options. The treatise can be read into evidence as substantive evidence under the hearsay exception. BUT THE TREATISE ITSELF CANNOT BE RECEIVED AS AN EXHIBIT!

38
Q

Confrontation clause

A

Limits the admissibility of testimonial evidence (Evidence made primarily for use in a criminal investigation). Such evidence is inadmissible UNLESS

  1. Declarant is unavailable as a witness AND
  2. Defendant had a prior opportunity to cross examine W.

EX: Transcripts of a sworn grand jury testimony, police lineups, videotapes of eyewitnesses, are primarily for use in criminal investigation. To be admitted, D had to have an opportunity to cross examine them.

39
Q

What are some examples of nontestimonial evidence?

A

Witness statements made before apprehension of suspect, 911 calls, statements made to help police in ongoing emergency, jail booking records

Remember: 6th amendment secures D right to confront witnesses offerign TESTIMONIAL evidence

40
Q

Compromise Negotiations

A

Inadmissible to
1. Prove or disprove the validity of a disputed claim or
2. Impeach by a PIS or contraditction

Admissible for other purpose tough
-Proving bias
-Negating contention of undue delay
-Obstruction of justice

Evidence (3 decks)

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