Evidence Flashcards
What is relevant evidence?
evidence that makes an existence of any fact more probable
- court can exclude if:
- probative value is outweighed by the danger of unfair prejudice
- confusion of the issues
- misleading the jury
- undue delay, waste of time
Can a prior similar event that does not relate be admitted?
YES!
- causation
- similar accidents or injuries caused by the same
event - similar acts used to prove:
- intent
- habit
- industrial custom
- routine
name exceptions of evidence not relating to the particular event that are policy based
liability insurance
- used to prove:
- ownership or control
subsequent remedial measures
- used to prove:
- ownership or control
- destruction of evidence
Settlement offers
withdrawn guilty pleas
Character evidence during a criminal case on direct examination can….
be intimated by the defense NOT the prosecution
Character evidence during a criminal case during cross examination of a party can be
introduced by defendant used to show good character and prove innocence
character evidence during a criminal case during cross-examination of both a party and a witness can be
used for impeachment
Character evidence during a civil case during direct examination…
not admissible UNLESS character is DIRECTLY in issue
child custody
defamation
character evidence during a civil case during cross examination for a party or witness
can only be used for impeachment
hearsay
an out of court statement made to offer the truth of the mater asserted.
how are hearsay exceptions divided?
declarant unavailable
vs
all others
what does a declarant’s unavailabilty result from?
privilege refusing to testify lack of memory death or physical mental illness absent beyond the reach of the court's subpoena power and the proponent of the statement has been unable to procure attendant or testimony
what hearsay exceptions require the declarant to be unavailable?
former testimony
statement against interest
dying declarations
statement of personal or family history
statement offered against party procuring declarant’s unavailability
former testimony exception
given as witness at a trial, hearing or lawful deposition
offered against a party who had an opportunity and similar motive to develop it by direct cross or redirect examination
statements against interest exception
reasonable person in the declarant’s position would have made only if the person believed it to be true
contrary to declarant’s proprietary or pecuniary interest
supported by corroborating circumstances that clearly indicate its trustworthiness
dying declaration exception
statement made by declarant believing that declarant’s death was imminent
statement about its cause or circumstances
what are the hearsay exceptions that do not require the declarant to be unavailable?
present state of mind or physical condition
excited utterance
present sense impressions
business records
public records
present state of mind or physical condition exception
must be then-existing state of mind or emotional, sensory, or physical conditions
not including a statement of memory or belief
excited utterance exception
statement relating to a startling event or condition
made while under the stress of excitement that it caused
present sense impressions exception
statement describing or explaining an event or condition
made while or immediately after the declarant perceived it
business records exception
made at or near the time by someone with knowledge
kept in the course of a regularly conducted activity of a business or organization
making the record was a regular practice of that activity
shown by a custodian’s testimony or by certification
the source nor the method of preparation indicate lack of trustworthiness
public records exception
records sets out the offices activities
observed while under a legal duty to report
neither the source of information nor other circumstances indicate a lack of truth-worthiness
past recollection recorded exception
a record that:
is on a mater the witness once knew about but nw cannot recall
was made or adopted by the witness when the matter was fresh in the witness’s memory
AND
accurately reflects the witness’s knowledge
May be read into evidence
may only be received as an exhibit if offered by an adverse party
mindmap for documents
is it relevant
has it been authenticated?
best evidence rule?
hearsay?
authentication
the document is what the proponent claims it to be
is a testimonial speaker needed with writings?
yes, to prove that the writing was made, signed or adopted by the particular relevant person.
is a testimonial speaker needed with photos?
yes, they must be ID’d by a witness as both a portrayal of relevant facts and a correct representation of facts
the witness needs to be familiar with the scene or object depicted
what documents are self-authenticating?
OIL CANS
official publications- issued by a public authority
instruments- negotiable and commercial paper
label, tag, trademark affixed on item in regular course of business
certified public documents-m by clerk or court that had custody
acknowledged documents signed before a notary, sworn to truth, content, and execution (except wills)
newspapers and periodicals with reasonable wide circulation
sealed documents (government certified)
best evidence rule
ONLY applies to documents
requires the “original writing, recording or photograph o prove its content”
ONLY applies if the contents of the writing are at issue
mind map for witnesses
competency
relevance
opinion
- lay witness
- expert witness
character
impeachment
privileges
hearsay
competency
a witness must have the capacity to: observe, recollect communicate appreciate he obligation to speak truthfully
witness must have….
personal knowledge
AND
must declare they will testify truthfully
what are the two different kinds of opinion evidence?
lay and expert
lay opinion testimony
generally inadmissible
may be allowed if no better evidence exists
must be:
based on the witness’s perception
helpful for a clear understanding of act at issue
AND
not based on scientific, technical, or other specialized knowledge
expert testimony
subject matter:
scientific
technical
other specializations
witness qualities as an expert
opinion backed with reasonable certainty
opinion supported by a proper factual basis:
- personal knowledge
- facts made known at trial
- facts made known outside of court
- need not to be admissible in court
- of the kind that are reasonably relied upon by experts in the field
character evidence
Criminal Trials:
- not allowed to prove conformity with the party’s character
- allowed for other purposes:
- motive
- opportunity
- intent
- preparation
- common scheme/ plan
- knowledge identity
- absence of mistake or accident
Civil Trials:
- not allowed unless character is at issue
- ex: child custody
impeachment
to cast an adverse reflection on a witness’s truthfulness
two methods of impeachment
cross-examination
extrinsic evidence
how can you impeach a witness through cross-exaimination?
prior inconsistent statements
bias or interest
criminal convictions
how can you impeach a witness through extrinsic evidence?
admissible only if the witness has the chance to explain the statement and an adverse party has he chance to examine the witness about it or if justice requires
crimes involving dishonesty
fraud or perjury
no time limitation on how old the crime is
the court has no discretion to exclude these crimes
felonies not involving dishonesty
the court does have discretion to exclude the conviction
must not be too remote - generally over 10 years since: - the date of conviction OR - release from confinement imposed for the conviction - the conviction is excluded
what is the balancing test that the court must weigh?
the government must show the probative value as impeachment is not out-weighed by its prejudicial effect
extrinsic evidence:
prior bad acts
interrogation about prior bad acts is admissibe within the court’s discretion
must be probative of truthfulness
what happens if a witness denies the prior bad act used in extrinsic evidence?
the cross-examiner CANNOT refute the testimony by calling other witnesses or by producing other evidence
extrinsic evidence:
reputation evidence
a witness may be impeached by showing poor reputation for truthfulness
DONE BY: calling another witness from the community where the impeached witness lives or from business circle
the impeaching witness may also state their personal opinion based on their relationship with the witness
TRUE OR FALSE:
impeachment IS ALLOWED on a collateral matter, but impeachment is NOT allowed of a hearsay declarant
FALSE
impeachment is NOT allowed on a collateral matter BUT impeachment IS allowed of a hearsay declarant
extrinsic evidence
real evidence
must be relevant
object must be authenticated that it is what the proponent claims it to be
attorney-client privilege
CLIENT MAY REFUSE TO DISCLOSE AND TO PREVENT ANY OTHER PERSON from disclosing confidential communications made for the purpose of rendition of professional legal services to the client
includes the attorney and its representatives
only the client can waive the privilege
physician, psychotherapist or social worker-patient privilege
confidential communications made for the purpose of diagnosis or treatment of the patient’s physical, mental or emotional condition
what are the two types of spousal privilege?
marital communication
spousal testimony
marital communication privilege
provides that EITHER spouse has a privilege to refuse to disclose and to prevent her spouse from disclosing a confidential communication made between spouses while they were husband and wife
spousal testimony privilege
a SPOUSE MAY NOT BE CALLED AS A WITNESS by the prosecution against his spouse in a criminal case and may not be compelled to testify against his spouse in any criminal proceeding including those where the spouse is not the defendant
