Evidence Flashcards
Hearsay
Out of court statement offered to prove the truth of the matter asserted. It is generally not admissible
Exceptions to hearsay
Present sense impression, excited utterance, then existing state of mind, Business record, dying declaration, statement against interest
Present sense impression
observations in real time
Excited utterance
statement made while excited
Then existing state of mind
Out of court statement offered to prove the truth of the matter asserted
Business record
Record kept in “regular course of business = ALL the TIME…not for a project…must be done all the time!!
Dying declaration
Homicide and Civil case…declarant believes they are dying, statement about WHY they think they are dying, and must be UNAVAILABLE
Statement against interest
Declarant is a (Party or NON Party) statement against their own interest tends to make them liable or guilty of something, reasonable person would not say it and they are UNAVAILABLE
Non-Hearsay
- Admissions (by PARTY to the case) –includes
- Prior Sworn Inconsistent statement – under oath, subject to cross exam
- Prior Consistent Statement
Adoptive admission
Silence when a reasonable person would object
Attorney Client Privilege
Does not have to be made to the lawyer, it can be any rep performing legal services. The statements must be confidential, but there is no privacy if info is to commit fraud/crime!
Spousal communication
Applies to any type of case. It must be confidential communication while they were married. Either spouse can refuse to talk and prevent other spouse from disclosing and the privilege survives divorce.
Spousal testimony
Criminal cases only. The witness spouse holds privilege and can refuse to testify against other spouse but they have to be married at trial
Doctor-Patient Confidentiality
Covers communications made for purpose of medical treatment!! Other people can be around and it can still be private if they are there for interest of patient and helping with the treatment of the person.
Best evidence rule
the original document must be admitted. BUT, rule only applies when the document is material to the case and someone is trying to prove the contents of the document
When the document is material, a copy will be allowed if ___
all effort to find original has been made and there no evidence of tampering (they will tell you)
Who can be a witness?
Generally. Look for whether they know the difference between a lie and the truth/understands what’s going on and whether they have personal knowledge
For expert witnesses, you have to ___
lay the foundation and prove their education/background
Impeachment
using something to attack a witnesses credibility because there is some lie or inconsistency in their testimony
You can/cannot use hearsay for impeachment purposes
CAN
You can ask a witness about a prior conviction if the conviction is for
a crime of truthfulnes/dishonesty
If a conviction is for a felony, it is not admissible unless ___
it is within 10 years and passes 403 balancing test
You can only ask a witness about a prior bad act IF
the act relates to dishonesty
If a witness denies the bad act you cannot ___
prove by extrinsic evidence
Character evidence is generally ____
not admissible
Character evidence is admissible in the following civil cases when the character of the D is at issue:
defamation, child custody, negligent entrustment, misrepresentation
Character evidence can be brought in in a criminal case when
1) D opens the door with good character
2) MIMIC (motive, intent, mistake, ID, common plan/scheme)
Good character must be for either:
Honesty/truthfulness or Peacefulness and it must relate to the crime charged
If D opens the door with their good character, the prosecution can bring in evidence of their ___
bad character
Habit can also be a way that character evidence comes in but it must be something that D ____ does
ALWAYS (every day)
Subsequent remedial measures cannot be offered to prove
negligence or liability
Subsequent remedial measures can be offered to show
ownership or control
Offers to settle/compromise are not admissible to show ___
liability
Offers to pay medical bills are not admissible to show ___ BUT ___
liability BUT can be admissions made with offer to pay bills CAN be severed and be admissible
Courts can take judicial notice of a fact if it is ___
not subject to dispute
Once court takes judicial notice of a fact the following happens in a criminal and civil case:
criminal- jury is instructed it MAY accept fact as conclusive
civil- jury is instructed it MUST accept fact as conclusive
