Evidence Flashcards
What is the defintion of logical relevance?
(1) Probabitive
(2) Material ( fact of conseqense)
Explain Legal Relevance ( 403)
The court may exclude relevant evidence if its probabtive value is substantially outweighed by a danger of
(1) Unfair prejudice
(2) Misleading the jury
(3) Confusing the issues
(4) undue delay
(5) wasting of time
(6) Cumulitive evidence
Subsequent Remedial Measures( Exclusions on public policy grounds)
- What can SRM not be used to show?
- What can they be used to show?
Negligence
Defective product or design
Culpable conduct
- Agency, ownership, control or for impeachment.
(Public policy exclusion) - Compromise offers and settlement negotations
Offers, conduct, statements are not admissable to prove (1) disputed claim (2) to prove amount or (3) impeachment purposes.
Offers to pay medical expenses cannot be used to show … but what can be used?
Liability for injuries but conducts or statements accompyining the offer are admissable.
Public policy exclusions - Guilty Pleas
(1) withdrawn
(2) no contest
(3) Statements during negotiation
(4) Statements made while negotiating with prosecutors.
However, they are admissable during perjury proceedings.
Are not admissable against defendant
Public policy exclusions - Liability insurance
Not admissable to show negligence or other wrongful acts. However, can be used to show bias, agency, ownership, or control.
What are the three types of character evidence?
(1) Reputation in community
(2) opinion testimony
(3) specific instances
In civil cases, propoensity character evidence is never allowed except:
(1) Character is essential element of crime
(2) Based on D’s sexual misconduct.
When is the introduction of character evidence allowed in a criminal case by D and in what ways?
When it is pertinent to the crime charged
By reputation or opinon ONLY.
After the D in a criminal case opens the door to character evidence, How can P respond?
(1) Specific instances on cross
(2) reputation or opinon showing D’s bad trait.
When can a criminal D introduce character evidence of the victim? How can P respond?
They can introduce O or P evidence of victims character if it is relevant to defense.
P may rebut by (1) D has same character trait or (2) victim has positive character trait. If done on cross, P may use specific instances.
MIMIC character evidence intent
What must P show to use specific instances of conduct for these purposes?
Specific instances of conduct can be shown to demonstrate
motive
idenity
Absence of mistake
common scheme or plan
- Evidence to support jury finding that the D commited the prior act and probabitive value isnt substantially outweighed by unfair predijuce.
What are the two elements of habit?
Frequency and particularity
What are the ways in which you can impeach a witness?
(1) Character evidence of untruthfulness through reputation or opinon
(2) Specific instances of misconduct regarding untruthfulness on cross - (Not arrest or consequense of arrest)
(3) Prior convictions - (a) felony or misdemenor involving dishonesty (within 10 years)(b) evidence of felony if it is legally relevant (c) over 10 year subject to reverse 403.
4. PIS - can use extrinsic evidence if witness given opportunity to explain or deny (only material)
5. Sensory competence - unable to recieve, recall, or relate info that is not collateral
6. Bias - but must be given ability to answer or deny.
** when hearsay statement is allowed, declarents crediblity can be attacked by any of these means.
What are the requirements for a lay witness opinon?
(1) rationally based on personal perception
(2) Helpful to undestand witness testimony
(3) not based on scientific or techinical knowledge.
What are the requirements of expert witnesses?
Can an expert witness give opinon on ultimate issue?
(1) Qualified
(2) Helpful to jury to understand facts
(3) reliable principles and methods
(4) expert reliabliy applied principles and methods to fact of case.
Yes - unless in criminal case involving requiste mental state.
Spousal immunity \
Marital communications
(1) applicable in criminal case and only the spouse holds the privilege.
(2) Communications made during marraige and intended to be confidential. Held by both spouses and extends beyond end of marriage.
Attorney client privilege
(1) made to facilitate legal services AND (2) intended to be confidential.
Does not apply when (1) furthering crime (2) litigation between attorney and client (3) co clients are now adverse.
Exists after death and until client waives it.
How can physcial evidence be authenticated?
Documentary?
Oral statements
What are the self authenticating evidence?
(1) Witness testimony OR chain of custody.
(2) Stipulation, witness testimony or handwriting verification.
Handwriting can be done by expert or trier of fact by comparing OR by non expert witness who was familiar with the handwriting prior to lit.
by any person who has heard voice through any means regardless of whether it was done to prepare for litigation.
Public documents bearing seal, certified copies of public records, official publications, newspapers or notrazied docs, commercial paper, trade inscriptions, business records certifed by custodian.
What is requied by the best evidence rule?
a party must provide the original document(writing, recordings,photographs, elecotrinc docs, x- rays, or an accurate duplicate when
(1) trying to prove contents or
(2) witness is relying on document when testiying.
handwriting document is not accurate duplicate and only allowed when orginial is gone after reasonable search.
What is Hearsay?
(1) out of court statement made by a person offered to prove the truth of the matter asserted. REMEMBER - must be an assertion.
What are statements that are not offered for their truth and thus arent hearsay?
(1) Legally operative
(2) Effect on listener
(3) Circumstantial for declarent’s mind state.
(4) impeachment purposes
What are hearsay statements that FRE exclude and thus are amdissable non- hearsay?
Prior statements of current witness subject to cross - (1) PIS if made under oath can be used substantively (2) prior consistent statements to rebut (3) for identification purposes.
Admissions by party opponent - vicarious(spokesperson, agent, co conspirator or adopted.
What are the hearsay exceptions when declarent is unavailable?
Former testiomoney when person it is being used against had motive and opportunity to cross.
Statements against property, money, or penal interest
Dying decleration if made in face of imminent death and pertains to cause or circumsatance of death. (homicide and civil cases). (doesnt have to be dead, just not available).
What are the hearsay exceptions when unavailablity is immaterial?
- Present sense - describes event right after it happens
- Excited utterance - still under stress
- then exisisting physical or mental state(intent, motive..) - can be used to show state of mind or conduct.
- Medical diagnosis - past or present condition for purpose of medical diagnoses. - even if made to family nurses or to enable doctor to testity at trial.
- Recorded recollection - (1) personal knowledge, (2) didnt jog memory (3) made or adopted (4) accutraly reflects witness knowledge. - can be raed, but only opposing can make it exhibit.
- Business record - (1) course of business (2) person with knowledge of matter at or near time of event
What is required by the 6th amedment confortation clause?
RIght to confront witness at criminal trial.
Hearsay statement, even if valid, violates D’s 6th amednemtn right if
(a) criminal action
(b) testiomonial - reasonably expect to use at testimony by declarent
(c) declarent is unvailable
(d) d never had change to cross examine.
Police evidence during scene of crime is not testimonial but intelligence gathering is.
Judcial notice of fact
Evidence is accepted as fact if (1) commonly known in community or(2) readily capeably of verification.
Civil - jury has to accept
Criminal - may accept.
