E Flashcards
LAY WITNESS
ANYONE CAN BE A WITNESS
TESTIFY AS TO KNOWLEDGE/ PERCEPTION
MUST TAKE OATH/AFFIRMATION
JUDGE/ JUROR MAY NOT BE A WITNESS
CHILD MAY BE A WITNESS
LAY WITNESS CANNOT TESTIFY AS TO
LEGAL CONCLUSIONS
EXPERT WITNESS
LAY FOUNDATION/QUALIFY THE EXPERT
CAN USE OUTSIDE EVIDENCE
CAN GIVE OPINION ON CONCLUSION
CANNOT GIVE OPINION ON MENTAL STATE OF DEFENDANT IF ELEMENT OF CRIME
CONTROL OF WITNESSES
THE COURT CAN TAKE STEPS TO KEEP REASONABLE CONTROL
LEADING QUESTIONS NOT ALLOWED ON DIRECT…EXCEPTIONS:
CROSS EXAMINATION
ADVERSE PARTY
SHY WITNESS/CHILD
JOG MEMORY
LAY FOUNDATION
REFRESHING MEMORY/RECOLLECTION
MAY SHOW ANYTHING TO WITNESS
BUT NOT READ INTO EVIDENCE
WITNESSES MUST NOT BE PRESENT IN COURTROOM
EXCEPTIONS
IF THEY ARE A PARTY
STATUTE ALLOWS
NEEDED
THE JUDGE AND THE JURY
JUDGE= RULES OF LAW + ADMISSIBILITY
JURY= QUESTIONS OF FACT + WEIGHT
OBJECTION TO ADMISSION
1) TIMELY
2) GROUNDS
OFFER OF PROOF
1) EVIDENCE WAS EXCLUDED
2) PRESERVES FOR APPEAL
BURDEN OF PRODUCTION
THE PLAINTIFF/PROSECUTION MUST PROVE EACH ELEMENT
BURDEN OF PERSUASION
CIVIL: PREPONDERANCE OF THE EVIDENCE (51%)
CRIMINAL: BEYOND A REASONABLE DOUBT
IF THE PRESUMPTION IS REBUTTED WITH EVIDENCE
THE JURY MAY CONCLUDE
IF THE PRESUMPTION IS NOT REBUTTED
THE JURY MUST CONCLUDE
CONCLUSIVE PRESUMPTION
NO REBUTTAL EVIDENCE MAY BE OFFERED
IMPEACHMENT
ATTACKING WITNESS CREDIBILITY
GENERALLY ADMISSIBLE
PRIOR FELONY CONVICTIONS
1) FELONY WITHIN 10 YEARS
2) PASSES THE BALANCING TEST
PRIOR CONVICTIONS REGARDING HONESTY/TRUTHFULNESS
1) FELONY OR MISDEMEANOR
2) PROVED BY REPUTATION, OPINION, OR ACTS
PRIOR BAD ACTS (NOT CONVICTIONS)
IN GENERAL- NOT ADMISSIBLE
REGARDING HONESTY/TRUTHFULNESS- ADMISSIBLE
NO EXTRINSIC EVIDENCE
COLLATERAL MATTER
NOT RELEVANT TO THE CASE
CANNOT BE USED TO IMPEACH
WHEN CAN YOU ADMIT FOR IMPEACHMENT AND SUBSTANTIVE EVIDENCE
WHEN THE STATEMENT IS ALSO NOT HEARSAY
RELEVANT EVIDENCE
ANY TENDENCY TO MAKE A FACT MORE OR LESS PROBABLE
GENERALLY ADMISSIBLE
RELEVANT EVIDENCE IS EXCLUDED IF
UNFAIRLY PREJUDICIAL
MISLEADS OR CONFUSES THE JURY
CAUSES DELAY
AUTHENTICATION
MUST SHOW THE EVIDENCE IS WHAT IT PURPORTS TO BE
HOW TO AUTHENTICATE
DIRECT TESTIMONY
SPECIAL MARKINGS
TESTIMONY W PERSONAL KNOWLEDGE
SELF AUTHENTICATING
LOOK FOR AN OFFICIAL/NOTARIZED DOCUMENT
DOES NOT REQ ADDITIONAL TESTIMONY
CHARACTER EVIDENCE
BAD THINGS THE DEFENDANT DID IN THE PAST
NOT ADMISSIBLE
TOO PREJUDICIAL
CHARACTER ADMISSIBLE IN CIVIL CASES WHEN AT ISSUE
DEFAMATION
CHILD CUSTODY
NEGLIGENT ENTRUSTMENT
MISREPRESENTATION/FRAUD
WHEN CHARACTER IS AT ISSUE
CAN B PROVEN BY REPUTATION, OPINION, AND SPECIFIC ACTS
CHARACTER ADMISSIBLE IN CRIMINAL CASES
D OPENS THE DOOR
D INTRODUCES EVIDENCE OF PERTINENT TRAIT
PROSECUTION CAN REBUT EVIDENCE OF SAME TRAIT
CHARACTER TO SHOW MIMIC IS ADMISSIBLE
MOTIVE
INTENT
MISTAKE (ABSENCE OF)
IDENTIFICATION
COMMON SCHEME OR PLAN
SELF DEFENSE CLAIM
D CAN SHOW P WAS INITIAL AGGRESSOR
PRIOR ACTS OF CHILD MOLESTATION
OTHER INSTANCES OF CHILD MOLESTATION ARE ADMISSIBLE
HABIT EVIDENCE
ROUTINE PRACTICE
ADMISSIBLE IF HABIT IS DONE ALL THE TIME
ATTORNEY/CLIENT PRIVILEGE
1) THERE MUST BE A RELATIONSHIP
2) APPLIES TO ANYONE WHO WORKS FOR THE ATTORNEY
3) LAST FOREVER
4) COMMUNICATION MUST BE CONFIDENTIAL
**PRIVILEGE IS HELD BY THE CLIENT
WORK PRODUCT
GENERALLY PROTECTED BY ATTORNEY/CLIENT PRIVILEGE
EXCEPTIONS TO ATTORNEY/CLIENT PRIVILEGE
GETTING ADVICE ON HOW TO COMMIT A CRIME
DISPUTE B/W ATTORNEY AND CLIENT
DOCTOR/PATIENT PRIVILEGE
STATEMENTS ABOUT TREATMENT OR DIAGNOSIS
OTHER CAN BE PRESENT TO ASSIST DOCTOR/PATIENT
EXCEPTIONS TO DOCTOR/PATIENT PRIVILEGE
1) PATIENT PUTS HIS CONDITION AT ISSUE
2) DISPUTE B/W DOCTOR AND PATIENT
SPOUSAL COMMUNICATION PRIVILEGE
PROTECTS CONFIDENTIAL INFORMATION DISCLOSED DURING MARRIAGE
COMMUNICATION PRIVILEGE APPLIES
CIVIL OR CRIMINAL
SURVIVES DIVORCE
EITHER SPOUSE MAY EXERT PRIVILEGE
BOTH SPOUSES MUST WAIVE
SPOUSAL TESTIMONIAL PRIVILEGE
PREVENTS A SPOUSE FROM TESTIFYING
TESTIMONIAL PRIVILEGE APPLIES
CRIMINAL CASE ONLY
MUST BE LEGALLY MARRIED AT TRIAL
COVERS EVENTS BEFORE/DURING MARRIAGE
ENDS WITH DIVORCE
WITNESS SPOUSE HOLDS THE PRIVILEGE
EXCEPTIONS TO SPOUSAL PRIVILEGES
1) STATEMENTS ABOUT FUTURE CRIMES
2) STATEMENTS ABOUT CHILD OR SPOUSAL ABUSE
JUDICIAL NOTICE
ANY EVIDENCE NOT SUBJECT TO DISPUTE
NO OPINIONS
**DAY OF THE WEEK/ ITS SUNNY OUTSIDE
WHEN TO TAKE JUDICIAL NOTICE
JUDGE MAY- WHETHER REQUESTED OR NOT
JUDGE MUST- IF REQUESTED BY A PARTY
JUDICIAL NOTICE OF LAW
MUST - FED OR STATE LAW
MAY- FOREIGN LAW OR MUNICIPAL ORDINANCE
JURY INSTRUCTIONS FOR JUDICIAL NOTICE
CIVIL CASE
JURY MUST ACCEPT AS CONCLUSIVE
JURY INSTRUCTIONS FOR JUDICIAL NOTICE
CRIMINAL CASE
JURY MAY ACCEPT AS CONCLUSIVE
SUBSEQUENT REMEDIAL MEASURES
EVIDENCE THT SOMETHING WAS FIXED AFTER AN ACCIDENT
NOT ADMISSIBLE TO SHWO NEGLIGENCE
PUBLIC POLICY RULE
EXCEPTION- SUBSEQUENT REMEDIAL MEASURES
ADMISSIBLE TO SHOW OWNERSHIP/CONTROL
LIABILITY INSURANCE
NOT ADMISSIBLE TO SHOW NEGLIGENCE
MAY BE ADMISSIBLE TO SHOW BIAS
OFFER TO COMPROMISE/SETTLE
NOT ADMISSIBLE FOR PUBLIC POLICY
MUST BE A DISPUTE B/W PARTIES
OFFER TO COMPROMISE+ ADMISSION
THE WHOLE STATEMENT IS NOT ADMISSIBLE
OFFER TO PAY MEDICAL EXPENSES
NOT ADMISSIBLE FOR PUBLIC POLICY
OFFER TO PAY MEDICAL EXPENSES + ADMISSION
ONLY THE ADMISSION IS ADMISSIBLE
PLEA NEGOTIATIONS
NOT ADMISSIBLE
ADMISSIBLE WITH AN ADMISSIBLE STATEMENT + FAIR
EX: NO CONTEST, GUILTY PLEA LATER WITHDRAWN, ANY STATEMENT ABOUT GUILTY PLEA
PAST SEXUAL CONDUCT OF VICTIM
NOT ADMISSIBLE TO SHOW OTHER SEXUAL BEHAVIOR OR SEXUAL PREDISPOSITION
EXCEPTION- PAST SEXUAL CONDUCT OF VICTIM IN A CRIMINAL CASE
1) SHOW CONSENT
2) PROTECTS D’S CONSTITUTIONAL RIGHTS
3) THE SOURCE OF ANY PHYSICAL EVIDENCE
EXCEPTION- PAST SEXUAL CONDUCT OF VICTIM; IN A CIVIL CASE
ONLY IF THE PROBATIVE VALUE OUTWEIGHS THE PREJUDICIAL EFFECT
BEST EVIDENCE- GENERAL RULE
THE BEST EVIDENCE IS CONSIDERED THE ORIGINAL
THE BEST EVIDENCE RULE DOES NOT APPLY TO OBJECTS.
The best evidence rule only applies to writings, recordings, photographs, or X-rays.
THE BEST EVIDENCE RULE EXCEPTION
IF THE ORIGINAL ITEM IS LOST OR DESTROYED, YOU MAY USE A COPY IF IT IS AUTHENTICATED
AUTHENTIC
NO EVIDENCE OF TAMPERING
START W PREMISE THE DOCUMENT IS AUTHENTIC
Examples:
Authentic
o Copy of contract or warranty deed from
courthouse
o Copy with no evidence of tampering
Not Authentic
o Warranty deed with sharpie marks demonstrates
tampering
BEST EVIDENCE RULE APPLIES IN 2 SCENARIOS
1) TO PROVE CONTENTS OF THE DOCUMENT
Examples:
o Copy of contract or warranty deed from courthouse
o Copy with no evidence of tampering
2) TO PROVE THE TESTIMONY BEING GIVEN
Exception:
If other evidence can prove testimony
COMPLETENESS RULE
When admitting a portion, the whole
document may be admitted for fairness
HEARSAY
GENERALLY INADMISSIBLE
START W THE PREMISE THT HEARSAY IS INADMISSIBLE UNLESS IT MEETS AN EXCEPTION
HEARSAY DEFINITION
Hearsay is an out-of-court statement offered to
prove the truth of the matter asserted
STATEMENTS NOT OFFERED FOR TRUTH
- Words of Offer & Acceptance
- Libel or Slander
- Verbal Acts to show motive/notice
HEARSAY EXCEPTIONS; PRESENT SENSE IMPRESSION
STATEMENT MADE WHILE OBSERVING FACT
NON EMOTIONAL OBSERVATION
HEARSAY EXCEPTIONS; EXCITED UTTERANCE
STATEMENT MADE WHILE EXCITED
LOOK FOR !!!!!!!!!!!!
HEARSAY EXCEPTIONS; THEN EXISTING MENTAL, EMOTIONAL, PHYSICAL STATE OF MIND
STATEMENTS OF INTENT, EMOTION, OR PHYSICAL STATE
Example:
o “I couldn’t have killed her, I loved her”
o “I was going to New Yorkͧ
o “I was on my way to L.A.”
o “I’m suffering pain right now”
HEARSAY EXCEPTIONS; BUSINESS RECORD
RECORD MADE IN THE ORDINARY COURSE OF THE BUSINESS
Example:
Business Record
o President signed an invoice or piece of paper
on ABC Inc. letterhead
o Time sheet
Not Business Record
o Christmas gift for clients on law firm letterhead
HEARSAY EXCEPTION; STATEMENT FOR MEDICAL DIAGNOSIS OR TREATMENT
STATEMENT RELATED TO PAST OR PRESENT SYMPTOMS
ABOUT THE TREATMENT OR DIAGNOSIS
HEARSAY EXCEPTIONS; RECORDED RECOLLECTION
1) WITNESS ON THE STAND CANNOT REMEMBER
2) DOCUMENT MADE/ADOPTED BY WITNESS
3) CAN BE READ INTO EVIDENCE
HEARSAY EXCEPTIONS; PUBLIC RECORD
RECORD OR STATEMENT OF A PUBLIC OFFICE/ AGENCY
OBSERVATIONS BY SOMEONE W A DUTY TO REPORT
EX: POLICE REPORT
HEARSAY EXCEPTIONS; ABSENCE OF BUSINESS RECORD OR PUBLIC RECORD
LOOK FOR FACTS TO INDICATE THERE WAS NO RECORD
HEARSAY EXCEPTION; LEARNED TREATISE
ADMISSIBLE WHEN AN EXPERT WITNESS IS RELYING ON THE TREATISE
HEARSAY EXCEPTION; ANCIENT DOCUMENT
AUTHENTICATION; DOCUMENT MUST BE MORE THAN 20 YEARS OLD
FRE HEARSAY EXCEPTION: DOCUMENT MUST HAVE BEEN PREPARED BEFORE 1998
CATCH ALL EXCEPTION
1) MATERIAL
2) TRUSTWORTHY
3) IN THE INT OF JUSTICE
HEARSAY EXCEPTIONS- UNAVAILABILITY REQ
DYING DECLARATION
1) Unavailability
2) Belief of impending death
3) About cause of death
4) Homicide or civil case
UNAVAILABLE
Unavailable witness means not currently
at the trial
Example:
o Missing
o In coma
o Pleaded the Fifth
o Witness Protection Program
HEARSAY EXCEPTIONS- UNAVAILABILITY REQ
STATEMENT AGAINST INTEREST
1) Unavailability
2) Makes declarant look liable/guilty
3) Generally made by non-party
HEARSAY EXCEPTIONS-
UNAVAILABILITY REQ
FORMER TESTIMONY
1) Unavailability
2) Opponent was a party to former case
3) Former case about same subject
4) Made under oath
5) Opportunity to cross-examine
NON HEARSAY
- Not an exception
- Admissible substantively
NON HEARSAY; ADMISSIONS
STATEMENT MADE BY A PARTY
ADMISSIBLE AS NON HEARSAY
NON HEARSAY; VICARIOUS ADMISSIONS
STATEMENTS MADE BY EMPLOYEES ABOUT COMPANY
Example:
o A worker in the company saying, “We don’t fix the
brakes”
o A worker in the company saying, “We are usually
drunk when we drive”
NON HEARSAY; ADOPTIVE ADMISSIONS
PARTY DOES NOT RESPOND WHEN A REASONABLE PERSON WOULD OBJECT
NON HEARSAY; PRIOR CONSISTENT STATEMENT
1) PRIOR STATEMENT BY DECLARANT
2) THE SAME AS CURRENT TESTIMONY
3) TO REFUTE CHARGE OF FABRICATION OR MOTIVE
NON HEARSAY; PRIOR SWORN INCONSISTENT STATEMENT
1) PRIOR STATEMENT BY DECLARANT
2) MADE UNDER OATH
3) INCONSISTENT W CURRENT TESTIMONY
NON HEARSAY; PRIOR IDENTIFICATION
DECLARANT TESTIFYING ABOUT AN EARLIER IDENTIFICATION
RIGHT TO CONFRONTATION
Right to confront a witness concerning an
out-of-court statement depends on if the
statement is TESTIMONIAL
NONTESTIMONIAL
- Statement made to police during an emergency
- Admissible
TESTIMONIAL
- Statement not made during an emergency
- Not Admissible
PHYSICAL AND DEMONSTRATIVE EVIDENCE
GENERALLY ADMISSIBLE
EX: SHOW SCAR, DEMONSTRATE LIMP
DOUBLE HEARSAY
TWO DIFF STATEMENTS
NOT ADMISSIBLE UNLESS BOTH MEET AN EXCEPTION OR EXEMPTION TO THE RULE
A WAIVER OF PRIVILEGE EXTENDS TO AN UNDISCLOSED COMM OR INFO ONLY IF THE WAIVER IS
intentional;
the disclosed or undisclosed communications or
information concern the same subject matter; and
they ought in fairness be considered together.
AN OBJECTION RAISED ONLY AFTER A WITNESS HAS LEFT THE STAND IS
NOT TIMELY
THE DEFENSE MAY OFFER EXTRINSIC EVIDENCE OF A WITNESS’S PRIOR INCONSISTENT STATEMENT FOR THE LIMITED NON HEARSAY PURPOSE OF
IMPEACHMENT AFTER THE W HAS BEEN GIVEN AN OPP TO EXPLAIN OR DENY THE STATEMENT
