Evidence Flashcards
Witnesses that may not be excluded from the courtroom:
(1) parties or their designated representatives,
(2) essential persons such as persons such as experts, prosecutor’s lead investigator, or
(3) persons authorized by statute to be present (crime victims)
An expert may typically offer an opinion on an ultimate issue - but in a criminal case, an expert may not:
Offer an opinion about whether the defendant possessed the requisite mental state for the charged crime or asserted defense
Telephone call can be authenticated by having a party to the conversation testify that:
(1) party recognized the speaker’s voice,
(2) speaker knew facts only certain persons would know,
(3) party dialed number believed to be the speaker’s and the speaker confirmed their identity upon answering, or
(4) party dialed a business and they spoke about business regularly conducted over the phone
How is a photograph authenticated?
By having a witness with personal knowledge of the thing depicted testify that the photograph fairly and accurately depicts that thing
A conviction may not be used for impeachment purposes if the witness has been pardoned, provided that either:
(I) the action was based on a finding of innocence; or
(II) the witness has not been subsequently convicted of another felony
Leading questions are not permitted on direct unless:
(A) witness is hostile,
(B) questions are needed to develop witness’s testimony, or
(C) witness struggles with communication
In a civil case, character evidence is generally inadmissible. It is admissible in a civil case when:
character is an essential element of a claim or defense (defamation, negligent hiring, negligent entrustment, child custody, fraud)
Dying Declaration (unavailability required)
(i) Declarant believes his death is imminent, and
(ii) Statement pertains to cause/circumstances of death
Homicide or civil case
Former testimony (unavailability required)
Admissible if:
(1) testimony was given as a witness in a previous trial, and
(2) party against whom the testimony is offered had an opportunity and similar motive to develop testimony previously
Statement against interest (unavailability required)
(1) Against declarant’s proprietary/pecuniary interest at the time made, and
(2) reasonable person would not have made it unless it was true
Statement of personal/family history (unavailability required)
Statements concerning brth, adoption, marriage, divorce, or other similar fact of personal family history are admissible
Statement against party that caused declarant’s unavailability
Statements offered against party that wrongfully caused declarant’s unavailability are not excluded
Present sense impression (availability immaterial)
(i) Description of an event/condition
(ii) made while or immediately after the declarant perceived it
Excited utterance (availability immaterial)
(i) statement about startling event/condition
(ii) while declarant is under stress of excitement that it caused
Statement of mental, emotional, or physical condition (availability immaterial)
statement of THEN EXISTING state of mind, or emotional, sensory, or physical condition
Statement made for medical diagnosis/treatment (availability immaterial)
Describing medical history or past/present symptoms is not excluded as hearsay if made for purpose of medical diagnosis or treatment - need not necessarily be made by patient
Recorded recollection (witness no longer able to testify)
Record is not excluded if:
(1) on a matter the witness once knew,
(2) was made when the matter was fresh in witness’s memory,
(3) accurately reflects witness’s knowledge, and
(4) witness states that he cannot recall even after consulting record on the stand
Business records (extends to any organization, even non-profit)
(i) kept in regular course of business,
(ii) making of the record was a regular practice, and
(iii) record was made at or near the time by someone with knowledge AND not in the anticipation of litigation
Public records (availability immaterial)
Statement of public office/agency that:
(1) sets out activities of office,
(2) observation of person under duty to report (not in criminal case), or
(3) factual findings of legal investigation (judgment)
To establish the contents of such judgment, generally necessary to introduce a copy of the record that has been properly certified by appropriate public custodian
Learned Treatises
Statement in treatise, periodical, or pamphlet not excluded if:
(1) expert witness relied on statement during direct/cross, and
(2) publication is reliable authority
- Likely will not admit who book into evidence
Judgment of previous conviction
(1) Final judgment entered after trial or guilty plea,
(2) Conviction for crime was punishable by death or imprisonment for greater than one year, and
(3) the evidence is offered to prove any fact essential to sustain judgment
Residual Exception (catch all)
Statement must be: (i) supported by sufficient guarantees of trustworthiness, and (ii) more probative than any other evidence that the proponent can obtain through reasonable efforts
Conditional Relevance
evidence may be admitted even though its relevance depends on the existence of the defendant’s knowledge of that fact
If character evidence is admissible in a civil case, in what forms may it be presented?
Reputation, opinion, and specific instances
If a judge determines the admissibility of evidence, can the jury later determine the WEIGHT of that evidence?
YES
If the government compels a witness to provide incriminating testimony, the government must offer at least:
Use immunity, which prevents the use of compelled testimony against the witness
Transactional Immunity
Not required; provides protection against prosecution for the entire transaction about which the witness was testifying
Subsequent remedial measures
not admissible to prove negligence, culpable conduct, defective design/product, or need for warning/instruction
admissible for purposes such as impeachment, ownership/control, feasibility of precautionary measures
Compromise offers/negotiations
Not admissible by EITHER PARTY to prove/disprove validity or amount of a DISPUTED claim, or for impeachment by prior inconsistent statement or contradiction
Evidence of payment, offers, or promise to pay medical expenses
Not admissible to prove liability for the injury
BUT statements that accompany the payment, offer, or promise to pay are admissible
Plea negotiation
Withdrawn guilty pleas, pleas of no contest, and statements made while negotiating plea bargain or plea proceeding are not admissible
UNLESS: another statement made during bargain is admitted, subsequent perjury prosecution
Liability insurance
Proof of or lack of is not admissible by EITHER PARTY to prove negligence or wrongfulness
Admissible to prove agency, ownership/control, or witness’s bias/prejudice
Prior Inconsistent Statements
Prior inconsistent statements made under penalty of perjury are admissible to impeach and as substantive evidence
Prior consistent statements
admissible to rebut express/implied charge that declarant recently fabricated or acted with improper motive, but must be made before declarant had reason to fabricate
Prior Identification
Prior ID of person after perceiving that person is admissible as substantive evidence even if witness has no memory of the ID
Opposing Party Statement
Statements made by a party to the current litigation that are being offered against that party are admissible as non-hearsay
Character for truthfulness or untruthfulness may not be proved by:
Extrinsic evidence of specific instances of conduct
Spousal privilege is comprised of two distinct privileges:
(1) Confidential Marital Communications and
(2) Spousal Immunity
Spousal Immunity
Generally, the spouse of a criminal defendant may not be called as a witness by the prosecution.
Nor may a married person be compelled to testify against his spouse in any criminal proceeding, including a grand jury proceeding, regardless of who is the defendant
*Witness spouse holds this privilege
EXCEPTION: Spouse can be compelled to testify when other spouse is charged with crime against spouse or children
Former testimony exception does not apply to:
grand jury testimony, BUT grand jury testimony could be admissible as PRIOR INCONSISTENT STATEMENT
Evidence of a person’s habit is admissible to prove:
person acted in accordance with the habit on a particular occasion
Habit is a particular routine reaction to a specific set of circumstances; must be semi-automatic in nature
**MUST BE SUFFICIENTLY SPECIFIC
Evidence of Final Judgment of Conviction is not hearsay if:
(1) judgment was entered after a trial or guilty plea,
(2) conviction was for a crime punishable by death or imprisonment for more than one year, AND
(3) evidence is offered to prove any fact essential to sustain the judgment
A voice can be authenticated by:
Any person who has heard the voice at any time
A statement made by a party in a pleading filed in another action:
Can be admissible against the party in the current action as an opposing party’s statement
Unavailable declarant
An unavailable declarant is a person who:
(i) is exempt on the grounds of privilege,
(ii) refuses to testify despite a court order to do so,
(iii) lacks memory of the subject matter of the statement,
(iv) is unable to testify due to death, infirmity, or physical or mental disability, or
(v) is absent and cannot be subpoenaed or otherwise made to be present
Five hearsay exceptions that require declarant’s unavailability:
(1) Former testimony, (2) dying declaration, (3) statement against interest, (4) statement of personal or family history, (5) statement offered against a party that wrongfully caused declarant’s unavailability
Confrontation Clause and hearsay
In a criminal trial, the Confrontation Clause requires that, in order to admit an out-of-court testimonial statement of a declarant against a defendant:
(i) declarant must be unavailable; and
(ii) defendant must have had a prior opportunity to cross-examine the declarant
In determining a preliminary question:
Although the court is generally not bound by the rules of evidence, the court CANNOT consider privileged evidence
Adjudicative Facts
For a court to take judicial notice of an adjudicative fact, the fact must not be subject to reasonable dispute
*Consider source whose accuracy cannot reasonably be questioned and from which the fact can be accurately and readily determined
Judicial Notice in Civil Case
In a civil case, the court MUST instruct the jury that a fact that has been judicially noticed must be accepted as conclusive
Leading questions are permitted:
When cross-examining. However, use of leading my be restricted when cross is cross in form only, rather than in fact such as when a party is cross examined by their own lawyer!
