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EVID Flashcards

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1
Q

EVID CHECKLIST

A
  1. presentation
  2. Relevance
  3. WNs
  4. tangible evid
  5. Privileges & policy exclusions
  6. Hearsay
  7. Hearsay Exceptions
  8. Constl limitations
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2
Q

PRESENTATION OF EVID

A
  1. applicability of FRE
  2. intro
  3. Judicial Notice
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3
Q

FRE DO NOT APPLY

A
  1. 104 Prelim Qs
  2. Grand Jury
  3. Crim
    - search/arrest warrant or summons
    - prelim exam
    - extradition / rendition
    - bail
    - sentencing
    - probation / supervised release
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4
Q

INTRODUCTION

A
  1. roles
    - Judge decides Prelim Qs of admisibilitY, cannot testify
    - Jury determines weight & credibility of evid, can testify after trial in limited circumstances
    a. extaneous prejudicial info
    b. improper outside influence, or
    c. mistakes on verdict form
    - Dead Man statutes protects decedent’s estate from financial claims only in Civ cases
    a. Waiver by failure to object to a disqualified WN or introduction of protected evid
  2. challenge to evid ruling
    - affect substantial right & notify Judge
    a. Objection if evid is admitted
    b. Offer of Proof if the evid is excluded
    - need not renew challenge after ruling
    - Plain Error affects substantial right and grounds for reversal even w/o a challenge
    - 105 Limited admissibility for one purpose and not another w jury instruction
    - Completeness rule to compel production of partially admitted evid
    - Demonstrative / Illustrative evid to summarize voluminious record after opponent has the opportunity to examine / copy
  3. Memory issues
    - Refreshing Recollection any item may be used to refresh present recollection after opponent had the opportunity to inspect, not admitted into evid unless by opponent
    - Recollection Recorded admit item that was prepared / adopted by WN to aid past recollection
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5
Q

MODE AND ORDER OF PRESENTATION OF EVID

A
  1. Trial Ct controls order of WNs / evid
  2. examination of WNs
    - direct, limited scope cross, CT discretion on redirect and recross
    - Mtn to Strike improper answer, or unresponsive answer only by examining counsel
  3. form of Qs
  4. Exclusion of WNs from the ctrm, unless
    - Parties (natural person, representation of nonnatural person, persons essential to presentation (ie. paralegal, Expert WN))
    - statutorily permitted persons, ie. V
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6
Q

FORM OF QS

A
  1. leading questions - w answer w/in the q
    - Not in Direct, unless hostile, incompetent, or child (some jdx)
    - Yes in Cross & matters affecting WNs credibility
  2. improper Qs
    a. object to substantive Qs (relevance/hearsay) at Trial
    b. object to form of Qs in depo
    - Compound multi Qs
    - Assumes facts not in evid
    - Argumentative presenting an argument rather than eliciting a response
    - Calls for conclusion/opinion not qualitifed to make
    - Repetitive asked & answered
    - Lack of Foundation failure to establish necessary predicate, ex. authentication of tangible evid
    - Narrative calls to tell a story
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7
Q

BURDEN OF PROOF

A
  1. Production - legally sufficient evid for each element of a claim to establish prima facie case
  2. Persuasion
    - Civ - POTE (or C&CE)
    - Crim - RBD
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8
Q

PRESUMPTIONS

A
  1. Rebuttable - shift burden of production, not persuasion, to opposing party
  2. Conclusive - cannot be challenged
  3. Destruction of evid - generally raises Rebuttable Presumption that evid was unfavorable if
    - intentially destroyed
    - relevant evid, and
    - V acted w due diligence as to the destroyed evid
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9
Q

201 JUDICIAL NOTICE

A

Ct acceptance of fact as true w/o requiring formal proof
- adjudicative facts not subject to rxnble dispute bc
a. generally known w/in the community, or
b. can be accurately & readily determined from reliable sources
- Jury instructions
a. in Civil must accept
b. in Criminal may accept

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10
Q

401 RELEVANCE

A
  1. if probative and material
    - probative - the tendency to make a fact more or less probable than it would w/o the evid = logical relevance
    - material - evid of consequence in determinin the action
  2. 402 relevant evid is admissable
  3. Direct vs. circumstantial evid
    - dirvect evid is identical to the factual proposition it is offered to prove
    - circumstantial evid is indirect proof of factual proposition through inference from collateral facts
  4. 403 Exclusion
  5. later introduction of proof for prior admitted evidence is OK
  6. curative admission of irrelevant evid to rebut previously admitted inadmissble evid to remove unfair prejudice
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11
Q

403 EXCLUSION

A

evid is inadmissible if the probative value is substantially outweighed by the danger of unfair prejudice
- confusing issues
- misleding jury
- undue delay
- wasting time
- needlessly cumulative

legal relevance - Reverse 403 (judicial discretion)

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12
Q

POLICY EXCLUSIONS 5

A
  1. Subsequent Remedial Measures
  2. Compromise / Settlement
  3. Medical Expenses
  4. Plea
  5. Liability Insurance
    (Sexual Conduct)
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13
Q

SUBSEQUENT REMEDIAL MEASURES

A

repairs after inj
- not to prove negligence, culpability, defective prod / design, or lack for warning
- but to impeach, ownership / control, or feasibility of precautionary measures

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14
Q

COMPROMISE / SETTLEMENT

A

offers or negotiation to compromise
- not for validity or amount, or impeachment by PIS / contradiction by Parties / TP
- but to prove bias of prejudice of WN, negate claim of undue delay, or obstruction of criminal investigation/preosecution, in subsequent crim case if w governmental agency

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15
Q

MEDICAL EXPENSES

A

offers to pay for medical expenses of inj
- not for liability
- but related statements or factual admissions

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16
Q

PLEA NEGOTIATIONS

A
  • not to prove culpability or guilty conscience while during / for NCP / w/drawn guilty plea
  • Exceptions for fairness if adready admitted and in subsequent perfjury prosecution
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17
Q

LIABILITY INSURANCE

A

having ins
- not to prove negligence or ability to pay
- but to prove agency, ownership / ctrl, or WN bias / prejud

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18
Q

SEXUAL CONDUCT

A
  1. V conduct (rape shield) V seexual behavior / predisposition inadmissable, unless
    - in Civ if Reverse 403 (PV&raquo_space; UP)
    - in Crim
    a. D not source of physical evid
    b. existing relation for consent
    c. violate D constl rights
  2. V reputation only admissible if in controversy by V herself
  3. D conduct to prove any relevant matter

Char evid

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19
Q

CHARACTER EVIDENCE

A

inadmissible to prove propensity, unless at issue (element)
- in Civ to prove Defamation, Negligent Hiring / Entrustment, Embezzlement, Child Custody by ROSA
- in Crim
a. D opens door to self by RO, Govt can cross w ROSA
b. D opens door to V by RO, Govt can rebut w ROSA and V peacefulneess in Homicide if claimed as first agressor
c. DV or Sexual Assault / Child Molestation by ROSA
- Sexual Conduct

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20
Q

PRIOR BAD ACTS MIMIC + OP

A

not for propensity to commit crime, but
1. Motive
2. Intent
3. Absence of Mistake
4. ID
5. Common Plan / Scheme
6. Opportunity
7. Preparation

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21
Q

CHARACTER EXCEPTION

A

Habit / Routine regular response to repreated situation RRRS, incl org
- does not need corroboration or EWN

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22
Q

WNs

A
  1. Competence presumed w/o minimum age
  2. Lay WN
  3. Expert WN
  4. Payment
  5. Impeachment
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23
Q

LAY WN

A
  1. competent w personal knowledge
  2. to O rationally based on perception
  3. helpful to fact finder
  4. not based on scientific / technical / specialized knowledge
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24
Q

EXPERT WN

A
  1. scientific / technical / specialized knowledge helpful to trier of fact by O
  2. Daubert qualified by knowledge, skill, experience, training, or education
  3. rxnble degree of certainty
  4. supported by sufficient fact / data (can be made known from trial)
  5. based on reliable principles & method (peer review, error rate, testability, general acceptance)
    - during Direct does not have to disclose Basis
    - Bases of Opinion
    a. personal knowledge
    b. from the record, but hypo w/o significant facts of the case is irrelevant
    Learned Treatise can be read into evid but not go w Jury to room
  6. can opine on ultimate issue, but not on Q of law, and Mens Rea in crime
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25
Q

PAYMENT OF WNs

A
  1. prohibited
    - in excess of rxnble expenses and rxnble value, except may be noncontingent fee
    - contigent on the content of the testimony or the outcome of the litigation, or
    - otherwise permitted by law
  2. permitted for appearance fee and travel allowance
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26
Q

IMPEACHMENT

A
  • any Party may attack WN credibility, even own
  • Bolstering credibility is prohibited until after WN is challenged
  • Rehabiliation on redirect after truthfulness was attacked w Prior Consistent Statement
  • 7 methods by Extrinsic Evid / cross (Confrontation)
    1. Prior Inconsistent Statement
    2. Prior Conviction
    3. Prior Bad Acts
    4. Bias / Motive / Partiality / Corruption
    5. (Un)Truthfulness
    6. Sensory Deficiencies
    7. Contradiction
  • Extrinsic Evid is any evid other than WN own testimony
  • Collateral Matter is not not directly related to the case
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27
Q

PRIOR INCONSISTENT STATEMENT

A
  • if under oath, can be used substantively too
  • EE if relevant w proper Foundation
  • Confrontration permitted
28
Q

PRIOR CONVICTION

A
  1. not Arrest, but
    a. Crimes involving Dishonesty - any crime (Fraud, Larceny by Trick, Embezzlement, Perjury) & Judge cannot exclude
    b. Felonies (punishable by death or > 1 year imprisonment) - Judge has discretion to exclude
    - DWN if PV outweighs the prejudice to D (stricter than 403)
    - Standard WN generally admissable, discretion is 403 Exclusion
  2. Stale after 10 years from the later of Conviction / Release, unless Reverse 403 & Mtn in Limine for notice of itnent to use

EE by certification or record w/o Foundation
Contradiction permitted

Pardon / Annulment w tfinding of innocence or Juvenille adjudication is inadmissible

29
Q

PRIOR BAD ACTS

A
  • probative on truthfulness, regardless of how long ago
  • EE never
  • only Contradiction in GF, but not ask about the consequence of the bad act
30
Q

BIAS / MOTIVE / PARTIALITY / CORRUPTION

A
  • if WN bias or financial / personal interest in the outcome
  • EE permitted
  • Confrontation required (Foundation)
  • Religious opinions & beliefs cannot be used to impeach, but can show Bias / Interest
31
Q

RO (UN)TRUTHFULNESS

A
  • by calling a second WN
  • EE RO community mouth
  • Confrontation permitted, SA at cross
32
Q

SENSORY DEFICIENCIES

A
  • impaired perception and recollection based on perceptive disabilities (ie. vision, hearing), lack of memory, or mental disorders to accurately relate testimony
  • EE permitted
  • Confrontation permitted
33
Q

CONTRADICTION

A
  • direct conflict w a fact already testitifed to
  • EE if not Collateral
  • Confrontration required
34
Q

TANGIBLE EVID

A
  1. Authentication & Self Authentication
  2. Best Evidence Rule
  3. Parol Evidence Rule
35
Q

AUTHENTICATION

A

all tangible evid must be authenticated to support a finding that the thing is what its proponent claims it is
1. physical objects - by personal knowledge, distinctive characteristics, or chain of custody
- reproductions (photos, diagrams, mpays) by testimony WN w personal knowledge that object accurately depicts what its proponent claims it does
- Xrays, EKGs process used was accurate, machine works, and operator qualified
2. documentary evid (can be self authenticating but needs BER for contents) - by stipulation, EWN testimony, or handwriting verification
- ancient docs (at least 20 yo) in condition unlikely to create suspicion and found in a likely place of natural custody
- public records recorded / filed in public office
- reply letter in response to communication
- handwriting verification by Expert WN comparison or non-expert w personal knowledge
- self authenticating doesn’t need Extrinsic Evid (ex. govt authorized docs,, certified pub recs, or newspapers)
3. oral statements
- Voice ID by any person who has heard voice at any time
- telephone statements by party to the conversation if recognized the speaker’s voice, knew facts that only a particular person would know, caller dialed number believed to be speaker, and speaker idetified self upon answering / caller dialed a business and spoke about business regularly conducted over the phone

36
Q

SELF AUTHENTICATION 7

A

docs doesn’t need Extrinsic Evid
1. Certified public / business record (ex. Drivers Lic)
2. Official publication
3. Newspapers
4. Trade inscriptions / labels
5. Acknowledged docs
6. Signature on commercial docs
7. Evid w distinctive characteristics (ex. serial #s, police initials)

37
Q

BEST EVIDENCE RULE BER

A

original doc or reliable duplicate must be produced to prove contents of writing when
1. contents are at issue, or
2. WN is relying on contents when testifying
- dup reliable if there is no genuine question as to the authenticity of the original, and not unfair (handwritten copies of ori are not dups)
- ori is not required when oris are lost / destroyed in GF, party w ori did not produce, or doc not closely related to controlling issue
- contents of pub rec are generally proved by a certified copy
- voluminous docs is summarized if contents cannot be conveniently examined in ct, proponent must make oris/dups available for examination and copying by other parties at a rxnble time and place, Ct may order oris/dups be produced in ct
- if admission by Party w ori

inapplicalbe to Collateral docs

38
Q

PAROL EVIDENCE RULE PER

A

operates to exclude evid of prior or contemporaneous negotiations that, if introduced, would change the terms of a written agreement
1. complete intergration contains all terms agreed by the Parties = PER is in effect and no Extrinsic Exivd is admissable
2. partial intergration contains some but all agreed upon terms
- EE that adds is admissible
- EE that contradicts is inadmissible
3. Exceptions - EE to clarify ambiguity, prove Course of Dealings, show fraud / duress / mistake, or show presense / absence of Consideration

excludes negos EE after K executed

39
Q

PRIVILEGES 6

A

to protect confidential communications
- destroyed if overheard, unless
a. no knowledge of TP presence, or
b. TP is necessary to assist communication (ex. translator)
- waived if Holder
a. fails to timely assert,
b. voluntarily discloses comm, or
c. contractually waives in advance
1. Spousal Immunity
2. Marital Communications
3. Atty-Client ACP
4. Psychotherapist-Patient
5. Clergy-Petinent
6. non-recognized privileges

governed by Fed CL is in fed ct

40
Q

SPOUSAL IMMUNITY

A
  • protects everything (comms and observations) from before & during Marriage
  • Holder is spouse, ends at divorce
  • Crim case only
41
Q

MARITAL COMMUNICATIONS

A
  1. protects comms only during Marriage
  2. Holders are both D and spouse, unless
    - legal actions between spouses
    - crimes against the testifying spouse / children
    - in furtherance of a joint crime / fraud
    - comms not intended to be confidential
  3. continues beyond divorce
  4. in both Civ and Crim cases
42
Q

ATTORNEY-CLIENT PRIVILEGE ACP

A
  • protects comm for legal advice (consultation)
  • Holder is client, survives even after death
  • Waiver, incl TP disclosure unless inadvertent
  • Exceptions 4
    1. to enable or aid crime / fraud (client knows of should have known)
    2. defense in legal malpractice suit
    3. dipute bw multi parties re same deceased client
    4. joint clients who became adverse
  • Work Product is protected though not comm, unless
    a. substantial need, and
    b. cannot obtain the information by any other means w/o undue hardship
43
Q

PSYCHOTHERAPIST-PATIENT PRIVILEGE

A
  • protects comm for treatment / diagnosis
  • Holder is patient
  • Exceptions 4
    1. state ordered exam
    2. commitment (mental hospitalization) proceeding
    3. patient mental condition is at issue
    4. dangerous patient (Duty to Warn)
44
Q

CLERGY-PETINENT PRIVILEGE

A
  • protects confessions
  • Holder is petinent
45
Q

NON-RECOGNIZED PRIVILEGES

A
  1. physician-patient - most States protect also for medical treatment / diagnosis hold by patient w same Exceptions as Psychotherapist-Patient
  2. Accountant-Client
  3. professional journalist - no protection re source
  4. Govt Privilege 2
    - from disclosing informant’s ID in Crim case if informant doesn’t volunteer ID
    - comm of official info by or to public officials

connects to SI

46
Q

PRIVILEGE WAIVERS 4

A
  1. voluntary disclosure
  2. K provision
  3. failure to invoke
  4. failure to object when priviliged testimony is offered
47
Q

801 HEARSAY

A

out of court statement offered to prove the Truth of the Matter Asserted TOMA
1. Declarant must be a person
- data readouts from machines w/o human input is nonHearsay
- animal conduct / barks are nonHearsay
2. Statement can be verbal, written, or assertive nonverbal conduct

Hearsay within Hearsay requires analysis for each Hearsay to be admissable as a whole

48
Q

801 NONHEARSAY PSA LEI

A
  1. Prior Statements 3
    - Prior Inconsistent Statement 2
    a. to impeach
    b. as substantive proof if under oath & subjected to cross
    - Prior Consistent Statement to rehabilitate
    - Prior Statement of ID is substantive evid even if WN has no memory of prior ID
  2. Statement by Party Opponent (Admissions) admissible w/o personal knowledge (can be O), need not against that Party’s interest
    - Judicial Admission - made in pleading, Disc, or proceeding is conclusive evid, except w/drawn guilty plea
    - Adoptive Admission - TP statement expressly / impliedly adopted by Party, incl silence in response if
    a. Party was present, heard, and understood the statement
    b. Party had the ability and opportunity to deny the statement, and
    c. rnxble person similarly situated would ahve denied the statement
    - Vicarious Statements - imputed statements based on the relationship bw the persons (EE/agent, authorized speaker, coConspirators)
  3. Legally Operative Words (Verbal Acts) - words w legally significant meaning (ex. acceptance, conspiracy, permission, waiver)
  4. Effect on Listener - to establish notice, G/BF, rxnbleness, reason for action / inaction the listener
  5. Impeachment

LEI don’t fit Hearsay definition

49
Q

803 HEARSAY EXCEPTIONS 8

A

declarant available
1. Present Sense Impressions - spoken thoughts
2. Excited Utterances - !
3. State of Mind - present and future motive / intent / plan
4. Statements for Medical Diagnosis
5. Recorded Recollection - unrefreshable memory
6. Business Records
7. Absense of Records
8. Public Records

incl statements from Learned Treatises, periodicals, or phamplets by Expert WN 803.18

50
Q

PRESENT SENSE IMPRESSIONS

A

explaining or describing event / condition made while (contemporaneous) or immediately after declarant perceived it

51
Q

EXCITED UTTERANCE

A

startling event/condition while declarant is under stress (slight delay is OK)

52
Q

STATE OF MIND

A

then-existing (present & future motive / intent / plan) state of mind or emotional / sensory / physical condition

cannot be restospective (based on memory / belief), except for Wills

53
Q

STATEMENTS OF MEDICAL DIAGNOSIS

A

describing medical history or present symptoms for medical treatment / diagnosis
- exclude statements of fault

can be made to anyone (ex. family members)
need not be made by the patient

54
Q

RECORDED (UNREFRESHABLE) RECOLLECTION

A

the record
1. from WN personal knowledge
2. made, recorded, or adopted by WN
3. made when matter was fresh
4. accurately reflects WN memory
5. WN cannot recall even after refreshed on stand

55
Q

BUSINESS RECORDS

A

rec
1. must be kept in course of regularly conducted business activity
2. making of record is regular business practice
3. made at or near the time
4. by custodian

Ct has discretion to exclude if preparation shows lack of trustworthiness

56
Q

ABSENCE OF RECORDS

A

to prove the nonoccurence of an event bc otherwise would be in biz recs

57
Q

PUBLIC RECORDS

A
  1. sets out activities of public office (incl nonprofit), or
  2. findings of a legal investigation
  3. in the scope of public officer / agent employment (duty to report)
  4. made at or neat the time

exclude police & FBI reports

58
Q

RESIDUAL EXCEPTION

A

catch all if
1. supported by sufficient guarantees of trustworthiness, and
2. more probative than any other evid that proponent can obtain through rxnble efforts

59
Q

804 HEARSAY EXCEPTIONS 5

A

declarant unavailable from testifying at or attending the trial bc privilege, memory, refusal, death / incapacity, absence + rxnble efforts
1. Former Testimony w same opportunity & motive in direct, cross, & redirect
a. in Civ against Predecessor in Interest
b. in Crim against same Party
2. Statement Under the Belief of Imminent Death (Dying Declaration)
3. Statement Against Interest
4. Statement of Personal or Family History
5. Statement against party that caused declarant’s unavailability (WN Tampering)

necessity exceptions bc declarant unavailable, after foundation

60
Q

FORMER TESTIMONY

A

w same opportunity & motive in cross (even depo)
a. in Civ against Predecessor in Interest
b. in Crim against same Party

exclude Grand Jury and other events w/o cross

61
Q

STATEMENT UNDER THE BELIEF OF IMMINENT DEATH (DYING DECLARATION)

A
  1. rxnble belief of imminent death about cause / circumstances of death, need not actually die
  2. only in Homicide and Civ cases

must not be mere suspicion (actual knowledge)

62
Q

STATEMENT AGAINST INTEREST

A
  1. against personal, proprietary, pecuniary (money), or penal interest, and
  2. rxnble person would not state unless true

against penal interest in Crim case must be corroborated

63
Q

STATEMENT OF PERSONAL / FAMILY HISTORY

A

about family pedigree (birth, adoption, marriage, divorce, death) if
- family member, or
- personal knowledge

64
Q

STATEMENT AGAINST PARTY THAT CAUSED DECLARANT’S UNAVAILABILITY (WN TAMPERING)

A

Party wrongfully caused declarant unavailability

from 6A Confrontation Clause

65
Q

CONSTITUTIONAL LIMITATIONS

A
  1. restrictions
    - 6A Confrontration Clause - objective analysis of testimonial statements & WN tampering
    - 14A DP - not to unduly restict D ability to mount defense
  2. face to face confrontation - can be denied if important public interest at stake

NY Bar (14 decks)

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