Evidence Flashcards
How can one authenticate a voice heard over the telephone?
A voice, whether heard firsthand or through a device (e.g., a tape recording) may be identified by the opinion of anyone who has heard the voice at any time. Thus, in contrast to the rule for handwriting verification, a person can become familiar with a voice after litigation has begun and for the sole purpose of testifying.
Statements made during a phone conversation may be authenticated by one of the parties to the call who testifies to one of the following: (i) he recognizes the other party’s voice; (ii) the speaker has knowledge of certain facts that only a particular person would have; (iii) he called, for example, Mr. A’s telephone number, and a voice answered, “This is Mr. A” or “This is the A residence.” This authenticates the conversation as being with Mr. A or his agent; or (iv) he called the person’s business establishment and talked with the person answering the phone about matters relevant to the business. This is sufficient to show that the person answering the phone held a position in the business. Self-identification by the caller, however, is insufficient evidence to allow for the admission of the telephone call against the speaker.
Does the certainty of a person’s proper voice identification go to admissibility or weight?
Weight
Is opinion testimony as to intoxication or what drug a substance is comprised of admissible?
Yes
At what point in the litigation is an offer to settle inadmissible?
There must be a claim at issue for the rule to apply. There need not be a filed lawsuit, but there must be at least some indication, expressed or implied of a claim. Additionally, the claim must be disputed as to liability or amount for the exclusionary rule to apply.
Can a guilty plea to DUI be used as evidence of intoxication at a related civil case?
Yes
In impeaching a witness with prior bad acts, can you use extrinsic evidence (e.g., another witness’s testimony)
No. Specific instances of a witness’s conduct may not be proven by extrinsic evidence when they are being used to impeach the credibility of the witness
Is a statement made 10 minutes after perception too long for a present sense impression?
Yes
Who can invoke the physician-patient privilege?
Only the patient (or the patient’s attorney). The physician themselves cannot invoke the privilege.
What is the result of judicial notice in a criminal vs. civil case?
Under the Federal Rules, in a civil case, the court must instruct the jury to accept the judicially noticed fact as conclusive. In a criminal case, the applicable rule is that the jury be instructed that the fact that has been judicially noticed may be accepted by it as conclusive, but that the jury is not required to do so.
When can summaries / charts be presented in place of the underlying documents?
The original document or best evidence rule generally requires the original writing to be produced when the terms of the writing are sought to be proved and are material to the case. [Fed. R. Evid. 1002] However, under Federal Rule 1006, the contents of voluminous writings that are otherwise admissible may be presented in the form of a chart as long as the original documents are available to the other party for examination and copying
Who decides authentication? Judge or jury?
Before a writing may be received in evidence, it must be authenticated by proof showing that the writing is what the proponent claims it is. All that is necessary (for the judge to allow the evidence in) is proof sufficient to support a jury finding of genuineness. The authenticity of a document is a preliminary fact to be decided by the jury
When is lay opinion admissible?
Lay opinion testimony is admissible when: (i) it is rationally based on the perception of the witness; (ii) it is helpful to a clear understanding of his testimony or to the determination of a fact in issue; and (iii) it is not based on scientific, technical, or other specialized knowledge. [Fed. R. Evid. 701] One matter about which a lay witness may testify is the general appearance or condition of a person
