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Bar Study > Evidence > Flashcards

Evidence Flashcards

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1
Q

Preliminary Facts

A

104(a) competency, admissibility, privilege -> judge considers all of the evidence (not just what’s admissible) to decide whether proponent meets preponderance of evidence test

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2
Q

Conditional Relevancy

A

104(b) where admissibility of one item conditional on relevancy of other item -> judge determines whether sufficient evidence for jury to find that first fact exists

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3
Q

What can be judicially noticed

A
  1. commonly known in JDX of ct 2. capable of accurate and ready determination -> no more evidence on that point OJO criminal jury may but is not required to accept
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4
Q

Relevance

A

(a) “any tendency to make a fact more or less probable than it would be without” (probative)
(b) “fact of consequence in determining the action” (material)

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5
Q

Prejudice (403)

A

if relevance substantially outweighed by  unfair prejudice (inferential and moral problems)  confuses issues/misleading to jury
 undue delay/waste of time/cumulative (to court)

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6
Q

Character: When it’s an essential element

A

entrapment, defamation, child custody, negligent hiring/supervision -> prove by specific acts. SEE ALSO child molestation, crim and civil. Specific acts don’t need to be proven, just shown by preponderance

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7
Q

When character allowed in crim case (404(a)(2)) (MD variant)

A
  1. D can bring up own character WHEN inconsistent w. offense charged, and prosecution can rebut. OJO MD if crime impeaches D’s veracity, can only intro char. ev. if testifies 2. D can bring up V character, prosecution can (a) rebut or (b) prove D has same trait (eg when trying to prove self defense in battery or homicide, that V is violent). OJO MD prosecution CANNOT respond w. bad character of D 3. homicide only prosecution can intro V’s peacefulness
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8
Q

Character evidence admissible as other than propensity evidence (404(b))

A

crimes, wrongs, other acts to prove SUCH AS motive opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, lack of accident -> don’t have to be proven, just shown by preponderance of evidence

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9
Q

Habit (406)

A

must be regular practice and predictive. regular response to repeated situation, semi-automatic

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10
Q

Special relevance rules

A
  1. subsequent remedial measures 2. settlement negotiations 3. offers to pay medical expenses 4. evidence of insurance coverage 5. negotiations for plea deals
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11
Q

Relevance: subsequent remedial measures

A

NOT allowed to prove to prove negligence, culpable conduct, a defect in a product or its design, a need for a warning or instruction. MAY be allowed for impeachment, ownership, control, feasibility of precautionary measures IF D says they were the safest possible

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12
Q

Relevance: Settlement negotiations

A

(a)(1) offer/acceptance or (2) conduct or statement during settlement negotiations NOT allowed to (dis)prove validity/amount of disputed claim. MAY be allowed to prove E.G. witness bias/prejudice, negating undue delay, proving obstruction. OJO! statements made BEFORE dispute starts are admissible
OJO! MD Mary Carter Rule: an agreement b/w the P and less than all the Ds that is secret and collusive is admissible (must have agreed to pay regardless of outcome of litigation) to show bias of D

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13
Q

Relevance: Offer to pay medical expenses

A

OJO!  statements made in relation to offer admissible

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14
Q

Relevance: Plea negotiations

A

withdrawn or nolo plea, statements in negotiations with attorney against D NOT admissible. OJO! only to attorney

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15
Q

Relevance: Insurance

A

evidence of insurance coverage NOT admissible to prove negligence or wrongful action. MAY to prove E.G. witness bias/prejudice, agency, ownership, control. Limits of coverage NEVER admissible.

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16
Q

Rape Shield Law

A

Victim past sexual conduct NOT admissible in rape case. EXCEPT: 1. defense is consent and they had prior relationship 2. defense is that semen came from another person, evidence of that relationship 3. if essential to D’s constitutional rights (e.g. where other relationship explains V’s motives for false accusation)

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17
Q

Privilege - how determined

A

in diversity - state law. in fed Q or crim - common law (not in rules of evidence)

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18
Q

Privilege: Lawyer - Client

A

Oral, written, and conduct statements, NOT observations. Lawyer’s agents and unknown eavesdroppers don’t destroy. Goes beyond client death. EXCEPTIONS: ongoing or future crime/fraud, malpractice suit, two clients fall out, client ID, fee arrangement.

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19
Q

Privilege: Psychotherapist-Patient

A

IF seekign diagnosis or treatment, extends to social workers and other licensed counselors. EXCEPTIONS: commitment proceedings, court ordered exams, claim for damages, future crimes

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20
Q

Privilege: Spousal Testimonial

A

Held by the spouse being asked to testify in a CRIM case AGST spouse. EXCEPTIONS: 1. divorced by time of testimony, 2. D charged w/ crime against spouse, 3. D charged w/ crime against their kids.

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21
Q

Privilege: Marital Communications

A

Held by both spouses (ie BOTH must waive), applies to anything during marriage even if divorced at time of testimony. EXCEPTIONS: 1. not during time of marriage 2. crime agst other spouse/kids 3. divorce proceedings 4. jointly charged with a crime

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22
Q

Privilege: Other

A
  1. Religious 2. Executive 3. 5th Amendment
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23
Q

Immunity

A
  1. transactional: can’t be prosecuted for any crime referred to in testimony 2. Use: can’t use testimony of witness or any evidence derived therefrom agst witness
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24
Q

Lay witness competency

A

Personal knowledge through one of five senses. 1. rationally based in perception 2. based on personal knowledge 3. helpful to trier of fact

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25
Q

Juror testimony

A

NOT before his own jury, NOT about manner in which reached decision - statements made, thought processes, votes taken. MAY about improper outside influences - extraneous prejudicial info, outside influence, clerical error.

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26
Q

Impeachment: Collateral Matter Rule

A

Can’t bring in extrinsic evidence on collateral matters in order to impeach. OJO! bias or prejudice, sensory defects never collateral, always material, so extrinsic evidence ok

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27
Q

Impeachment: Untruthfulness

A

ALWAYS material, can be shown by reputation or opinion or cross examination about specific acts but NO extrinsic evidence (good faith belief). OJO character for TRUTHfulness only material if has already been attacked.

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28
Q

Impeachment: By Past Crime (MD twists)

A
  1. felony with 1+ yr punishment subject to 403 (for D substantially outweigh) 2. crime involving dishonesty/false statements, no balancing: perjury, fase statement, fraud, embezzlement, false pretense, other crimen falsi readily determined 3. crimes 10+ years old from date of later conviction/release only if probative substantially outweigh prejudice 4. juvenile inadmissible against D, other witnesses judge decides
    OJO! in MD must be proved by CCE. Also past crimes can also come in for domestic violence protective order hearing
    OJO! in MD can only use infamous crime or other relevant to credibility: treason, theft, drug distro, common law felonies, crimes involving deceitulness or falsification. Using date of conviction only, 15+yr old NOT admissible, juvenile NOT admissible.
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29
Q

Leading questions

A
  1. hostile witness 2. adverse witness 3. child witness 4. prelim background info 5. refresh recollection 6. x-exam
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30
Q

Refresh recollection

A

 must demonstrate witness does not remember, can lead NB: no FH knowledge requirement, doesn’t need to be theirs  can keep in hands while testifying
→ adverse party has right to 1. inspect 2. x-exam 3. show to jury 4. enter into evidence (almost never)

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31
Q

Impeachment: Prior Statements

A

OJO! If unsworn, only admissible to impeach. Extrinsic evidence IS permissible as long as 1. witness opportunity to explain/deny 2. opposing counsel can interrogate UNLESS interests of justice

32
Q

Exclusion of witnesses

A

SHALL happen UNLESS 1. it’s a party or their representative 2. a person whose presence is essential 3. victim 4. expert witness 5. prosecutor’s investigator -> mistrial, contempt, harmless error

33
Q

Scope of lay testimony (MD twist)

A

VEMPSS: value of own land, emotional state of others, measurements, physical states, sensory descriptions, sanity of testator (wills only)
OJO in MD if convicted of perjury can no longer be witness

34
Q

Expert Testimony: Witness requirements (MD twist)

A

SKEET: skill, knowledge, education experience training can testify IF 1. based on sufficient facts/data 2. product of reliable principles/methods and 3. witness has applied methods reliably. OJO MD no application requirement

35
Q

Daubert requirements

A

TAPES: testability, acceptance in the field, peer review, error rate, standards (maintenance of)

36
Q

Expert Testimony: Basis

A
  1. facts personally known to the expert 2. facts made known at trial 3. facts acquired prior to trial, even hearsay, if reasonable, generally relied upon
37
Q

Expert Testimony: Ultimate Issue (MD twist)

A

General rule: may testify embracing ultimate issue. OJO! in crim trial, can’t testify as to whether D had requisite mental state that is an element of or defense to the crime. Also can’t opine as to truthfulness of other witness OJO! in MD CAN testify to criminal responsibility based on insanity, but not to required mental state.

38
Q

Hearsay: Define

A
  1. oral, written, or nonverbal assertion 2. made by a person not at trial 3. offered to prove truth of matter asserted
39
Q

Hearsay: Not for the truth of the matter

A
  1. effect on the listener 2. state of mind (delusion) 3. verbal acts - legal operative significance e.g. K, defamation, crime 4. condition of the speaker 5. nature of the place
    OJO a warning that apprises the person of a dangerous condition has a substantive legal significance independent of the truth or falsity of the statement itself.
40
Q

Hearsay: admissions by party opponent

A

statement OR adopted by silence if 1. heard and understood 2. was at liberty to respond 3. circumstances called for a response 4. party failed to respond OJO not in front of police OR agent, rep, co-conspirator

41
Q

Hearsay: admissions by agents

A

Must be about scope of employment but not within scope and during existence of relationship. OJO prove relationship conditional relevance 104

42
Q

Hearsay: admissions by co-conspirators

A

Must be 1. during conspiracy (NOT after arrested) and 2. in furtherance of. OJO prove conspiracy conditional relevance 104. Can bootstrap statement itself with other evidence to prove conspiracy (by preponderance)

43
Q

Hearsay: Prior statements by available witness

A

IF available at trial and for x-exam: 1. past inconsistent statement to impeach - must be given opp to explain/deny 2. past inconsistent statement for truth if given under oath (affidavit doesn’t count) 3. past consistent statement IF to rebut charge of recently fabrication/acting from recent improper influence or motive 4. identification

44
Q

Hearsay: Present sense impression

A
  1. personal knowledge 2. spontaneous/not reflective 3. made while or right after event 4. mostly oral 5. doesn’t have to be startled
45
Q

Hearsay: Excited Utterance

A
  1. startling event 2. still under influence so can’t censor self OJO time passage 3. personal knowledge
46
Q

Hearsay: Then-existing mental, emotional, physical condition

A

can be present or forward looking intention but NOT backward looking. must be about self, edit out other person

47
Q

Hearsay: for medical diagnosis/treatment

A
  1. to medical personnel or to other to seek help 2. by anyone in order to seek help 3. can be in prep for expert testimony at trial
48
Q

Hearsay: past recollection recorded

A

IF witness has present memory problem and record made at the time and is accurate -> give to witness, who adopts it on the stand, can read into evidence. Other party can inspect, use to x-examine, show to jury, intro as evidence.

49
Q

Hearsay: Business records

A
  1. made and intro’d with someone with first hand knowledge 2. kept in regular course of business 3. business duty to record by person who recorded 4. at or near time of event. ABSENCE of record also admissible to prove nonoccurance
50
Q

Hearsay: Public records

A
  1. made/intro’d with someone with first hand knowledge but does NOT need to be regularly kept or made near time of event 2. in crim trial NOT police records 3. in civil cases fact findings w/ conclusions ARE admissible unless signs of lack of trustworthiness
51
Q

Hearsay: Other inherently trustworthy sources

A
  1. Vital statistics 2. records of religious orgs 3. marriage etc. certificates 4. family records 5. records documenting interest in property 6. ancient (20+ yr) documents that are authenticated 7. market reports 8. learned treatises 9. reputation concerning family history 10. reputation concerning boundaries 11. reputation about character 12. judgment of previous conviction 13. judgment as to history or boundaries
52
Q

Hearsay: Is the declarant unavailable?

A

privilege, refusal, death/then-existing infirmity, unable to procure through reasonable means (NB: foreign nationals) EXCEPT if proponent wrongfully caused unavailability in order to prevent testimony

53
Q

Hearsay: Declarant unavailable (MD variant)

A
  1. testimony under oath offered against party who CRIM had opportunity and similar motive to develop or CIVIL had a predecessor in interest 2. dying declaration in CRIM homicide or CIVIL any where declarant believed death was immanent and was about his own death 3. statements against interest - pecuniary, proprietary, punitive OJO in CRIM if shifts blame has to be corroborated 4. pedigree - decl’s family history 5. offered agst party who wrongly and intentionally procured unavailability (preponderance) (also CC) OJO! MD only for violence and drug cases, prior statement must have been under oath, written and signed, or contemporaneously transcribed
54
Q

Confrontation Clause

A

IF testimonial (made under circumstances that would lead an objective witness to reasonably believe that it would be available for use later at trial) THEN right to x-examine. EXCEPT ongoing emergency. USE primary purpose test.

55
Q

Hearsay: Residual exception

A
  1. more probative on the point than any other evidence 2. equivalent circumstances guarantee trustworthiness 3. on a material fact 4. serves interest of justice
56
Q

Authentication

A

is the exhibit what the proponent says it is? issue of conditional relevance under 104(b): sufficient evidence for the jury to find so

57
Q

Authenticate: Demonstrative evidence

A

must fairly and accurately represent as testified to by a witness familiar with it

58
Q

Authenticate: Real evidence

A

personal knowledge, distinctive characteristics, OJO for fungible items chain of custody where break goes to weight, photos accurate portrayal as testified to by person with knowledge

59
Q

Authenticate: Documents

A

by someone with first hand knowledge. “reply doctrine” circumstantial evidence written by person to whom original letter sent. ancient documents: if found in place expected.

60
Q

Authenticate: Handwriting

A
  1. layperson with familiarity from before litigation 2. by expert anytime
61
Q

Authenticate: Phone calls

A

outgoing: right number, answer with right name. incoming: reliable process to identify source of call or circumstantial evidence. business: used registered number and conversation related to transactions engaged in by that business

62
Q

Authenticate: Self-authenticating documents

A

CONTAC: Certified, Official publications (govt), Newspapers, Trade inscriptions (food labels), Acknowledged (notorized), Commercial paper

63
Q

Best Evidence Rule

A

IF the contents of a writing, recording, photo at issue, then need original OR duplicate unless a. concerns raised as to authenticity or b. would be unfair to admit in lieu of.

64
Q

Best Evidence Rule: Original not required

A
  1. prove by other means 2. easy to remember (license plate) OR 1. lost or destroyed unless through bad faith by proponent 2. can’t be obtained by legal means 3. in possession of the opponent 4. not closely related to controlling issue
65
Q

Relevance: Prior accident/similar events

A

Prior/subsequent accidents admissible to prove 1. dangerous condition existed 2. product is defective 3. cause of accident 4. notice of dangerous condition ONLY IF substantially similar conditions. ABSENCE of prior similar accidents to rebut claim of dangerous condition or show lack of negligence

66
Q

Privilege: Patient-Doctor

A

Most states have by statute. Many states do not apply this privilege (1) if the patient’s physical condition or competency is in issue; (2) in criminal trials; (3) in cases where the patient is suing the physician for malpractice; or (4) where the communication was made to assist in the commission of a future crime or fraud.

67
Q

Hearsay: Past Crimes

A

a prior conviction of a party (after a trial or plea and dash, but not after a nolo contendere conviction) of a crime punishable by death or imprisonment in excess of one year is admissible as substantive evidence of facts essential to sustain that conviction.

68
Q

Child witness

A

Children over the age of nine are permitted to testify under oath as long as they understand the nature of the oath under which they testify. A witness understands the nature of the oath if she understands the difference between the truth and a lie, the necessity of telling the truth and that she could be punished if she does not tell the truth while under oath.

69
Q

Prejudice/Relevance: Evidence of past tort claim

A

Evidence that the plaintiff has previously filed a tort claim similar to the one at issue before the court is not admissible to prove that the current claim is meritless. Where the plaintiff has previously filed tort claims that were proven false, evidence of such claims is admissible in current litigation to prove that the plaintiff engaged in a common plan or scheme to wrongfully obtain tort damages.

70
Q

Hearsay: Adoptive admission

A

if: 1) the party against whom the evidence is offered heard, understood and was capable of responding to the statement; and 2) a reasonable person in the party’s position would have responded. TIP: look for questions in which someone is accused of a malum in se crime like rape or murder

71
Q

MD Scope of Evidence Rules

A

between hi and bye to the jury, but excluding sentencing and juvenile restitution hearings and grand jury

72
Q

MD Limiting instructions

A

two times: when evidence received and during final jury instructions

73
Q

MD Rule of Completeness

A

If admitting only a portion would be unfair, can consider the rest BUT the rest must come in on x-examine, not direct

74
Q

MD battered spouse/child evidence

A

Can be imperfect self-defense murder -> manslaughter

75
Q

Privilege: 5th Amendment and Witnesses (MD)

A

In crim case, D can call a witness only to have them take the 5th in order to create inference that witness may have committed the crime. Must be determination by judge that sufficient evidence exists linking the witness to the crime.

76
Q

MD Dead Man Statute

A

No testimony concerning transaction or statement made by dead person or though agent after death (or incompetent person) UNLESS called by opposing party or was put into evidence in same proceeding concerning same transaction. Only a party is barred from so testifying.

77
Q

Hearsay: Tender Years Exception (MD)

A

for child abuse, if small child blurted out what happened to a family member or similar adult, that adult can testify about the statement

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