Evidence Flashcards
State of Mind Exception to Hearsay
It’s not hearsay (it’s an exclusion) for someone to testify to declarant’s then-existing state of mind or emotional/physical condition (Remember OKMIMIC factors).
Doesn’t include statement of memory or belief to prove the fact remembered unless it relates to validity or terms of declarant’s will.
Doesn’t matter if declarant is available or not.
Subsequent Remedial Measures
Inadmissible to prove negligence, culpable conduct, need for a warning, or design defects.
Exceptions: admissible to prove ownership or control if controverted or in issue, feasibility of a precautionary measure, or to impeach.
Handwriting Identification
Can be authenticated by (1) someone familiar with the handwriting before trial, but they cannot become familiar with it for purposes of trial; (2) an expert; or (3) the trier of fact.
Voice Identification
Can be authenticated by someone who became familiar with the voice for the purpose of trial.
Best Evidence Rule
The original must be provided when trying to prove the contents of a writing unless it is unavailable. Applies only to photographs, recordings, and writings.
Confidential Communications
Applies in both criminal and civil cases.
Protects communications made between spouses during marriage. Both spouses hold this privilege, so one can prevent the other from testifying. This privilege survives death and divorce.
Spousal Immunity/Testimonial Privilege
Applies in criminal cases only.
Protects adverse statements made by a spouse based on knowledge or observations made before or during marriage, so long as spouses are married at the time of trial. Only the witness/testifying spouse is the holder of this privilege. They can testify if they want. This privilege dies upon death or divorce because spouses must be married at time of trial.
Judicial Notice
Judicial notice may be taken of facts that aren’t subject to reasonable dispute because they’re generally known within jurisdiction of the court. Acts need not be known everywhere as long as they’re known in community where court is sitting
Criminal case: court must instruct jury it may or may not accept noticed fact as conclusive.
Civil case: court must instruct jury to accept noticed fact as conclusive.
Experts’ Pretrial Experiments
Only relevant if conditions of experiment were substantially similar to conditions at time and place of the accident.
Evidence of pretrial experiments that doesn’t require expert testimony is treated no differently from other evidence. It’s admissible if relevant.
Statement by Opposing Party
Statement (admission) by opposing party is admissible as an exclusion (not hearsay).
Defendant’s guilty plea in a criminal case is admissible in a civil case for the same act as an opposing party statement.
Prior Statement of Identification
A declarant’s prior statement identifying someone she perceived earlier is not hearsay if the declarant is now testifying at trial and subject to cross-examination about the prior statement.
Clergy-penitant Privilege
Similar to attorney-client privilege, a person has a privilege to refuse to disclose, and to prevent others from disclosing, a confidential communication by that person to a member of the clergy in the clergy member’s capacity as a spiritual adviser.
Hearsay Exceptions Requiring Unavailability
Dying declarations Former testimony Statements against interest Statements of personal/family history Statements offered against party procuring declarant's unavailability
Prior Testimony Hearsay Exception
Testimony of an unavailable witness is admissible if it was given under oath at a trial, hearing, or deposition, and the party against whom the testimony is now being offered had an opportunity and similar motive to develop declarant’s testimony by direct and cross examination.
Statements Against Interest Hearsay Exception
A statement of an unavailable witness is admissible if that statement was against that person’s pecuniary, penal, or proprietary interests when made, such that a reasonable person would have made it only if she believed it to be true. Declarant must also have personal knowledge of the facts.
In criminal cases, corroborating circumstances are required for statements against penal interests.
