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EVIDENCE Flashcards

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1
Q

SPOUSAL IMMUNITY

A

PROSECUTION CAN’T COMPEL THE D’S SPOUSE TO TESTIFY AGAINST HIM IN A CRIMINAL CASE. ELEMENTS ARE: 1: AN EXISTING MARRIAGE, 2: CRIMINAL CASE AGAINST SPOUSE, AND 3: SPOUSE IS CALLED TO TESTIFY.
THE WITNESS SPOUSE HOLDS THE PRIVILEGE AND CAN WAIVE THE PRIVILEGE.

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2
Q

MARITAL COMMUNICATIONS PRIVILEGE

A

CONFIDENTIAL COMMUNICATIONS BETWEEN MARRIED COUPLES ARE PRIVILEGED, AND EITHER SPOUSE MAY PREVENT THE OTHER FROM DISCLOSING. PARTIES MUST BE MARRIED AT THE TIME OF THE COMMUNICATION AND IT ONLY APPLIES TO CONFIDENTIAL COMMUNICATIONS (NOT IN THE PRESENCE OF A THIRD PARTY)

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3
Q

MARITAL COMMUNICATIONS: DEFINITION OF COMMUNICATION

A

MADE IN PRIVATE (NOT IN THE PRESENCE OF THIRD PARTY); ACT THAT WAS INTENDED TO COMMUNICATE A MESSAGE TO THE SPOUSE, MADE DURING THE MARRIAGE (NOT BEFORE). DOES NOT TERMINATE UPON DIVORCE; MADE IN RELIANCE ON THE INTIMACY OF THE MARRIAGE

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4
Q

EXPERT TESTIMONY ON MENTAL STATE

A

EXPERT MAY NOT STATE AN OPINION AS TO WHETHER THE ACCUSED DID OR DID NOT HAVE THE MENTAL STATE AT ISSUE. FEAR AT THE TIME OF THE KILLING FALLS UNDER THIS PROHIBITION.

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5
Q

Definition of Relevance:

A

Evidence must be :

1: Material (of consequence) and
2: Probative: (any tendency to make the proposition more or less likely)

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6
Q

Rule 403

A

Court has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by its prejudicial effect: Prejudice > probative

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7
Q

Habit Evidence

A

Evidence of person’s habit is admissible: Elements: 1. Frequency of conduct; 2: Particularity of the circumstance

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8
Q

Industry Custom as Standard of Care

A

Evidence of how others in the same trade or industry have acted in the past may be offered as evidence to show how the party in the current case should have acted; this isn’t conclusive.

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9
Q

What are the Public Policy Exclusions

A
  • Liability insurance
  • Subsequent remedial measures
  • Civil Settlements and Settlement Negotiations
  • Plea Discussions
  • Payments of and Offers to Pay Medical Expenses
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10
Q

When is Liability Insurance Admissible/Inadmissible?

A

Inadmissible:
- to prove negligence (party’s fault or absence of fault)

Admissible:

  • to prove owner ship or control
  • to impeach a witness (show bias)
  • admission of liability, where the coverage can’t be severed :don’t worry my insurance will cover it
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11
Q

When are Subsequent Remedial Measures Admissible/Inadmissible?

A

Inadmissible:

  • negligence
  • culpable conduct
  • defect
  • need for a warning

Admissible:

  • ownership/control (if disputed)
  • rebut a claim that a precaution was not feasible
  • prove that the opposing party has destroyed evidence
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12
Q

When are Civil Settlements and Settlement Negotiations I/A?

* also what is required for these

A

Inadmissible:

  • prove or disprove the validity or amount
  • impeach a witness by prior inconsistent statement or contradiction

Admissible:
- bias: the other party settled and is now testifying

* need some indication that the other party was going to make a claim (doesn’t need to be filed)

* claim must have been in dispute as to either 1: liability or 2: amount

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13
Q

Exception to Exclusion of Settlements and Settlement Negotiations

A

conduct/statements made during negotiations in a civil dispute with a governmental authority are not excluded when offered in a criminal case

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14
Q

When are Plea Discussions I/A?

A

Inadmissible:

  • offers to plead guilty
  • withdrawn guilty pleas
  • actual pleas of no contest or
  • statements of fact made during any of the plea discussions

Admissible:
- actual guilty pleas are admissible

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15
Q

When are payments/offers to pay medical expenses I/A?

A

Inadmissible:
- to prove liability

Admissible:
- admission of fact accompanying the payments are admissible.

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16
Q

Common Methods of Proving Character

A
  • Reputation evidence: testimony as to the person’s general reputation in the community
  • Opinion testimony: of a person who knows the party
  • Specific acts
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17
Q

How Crim Defendant Proves Character for himself

A
  • can initate evidence o their own good character to show innocence
  • reputation/ opinion for a pertinent trait (think if it is a violent crime)
  • no specific acts
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18
Q

Prosecution options for character evidence

A
    • can’t initiate evidence of D’s character trait
  • once D opens the door, P can
    • cross examine the D’s witness about specifc acts (no extrinsic evidence)
    • can bring in its own witness
  • has to be of the pertinent trait.
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19
Q

Defendants initiation of character evidence of victim

A
  • can introduce evidence of the relevant trait of victims
  • Prosecution can rebut with R/O evidence of victim’s good character or D’s bad character
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20
Q

When can Prosecution initiate Character Evidence?

A
  • When rebutting the self-defense claim in homicide case
  • when the D initiates any evidence (character or not) that the victim was the first aggressor, then the prosecution can offer evidence of the victims good character for peacefulness
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21
Q

Exceptions to Rape Shield

A
  • Criminal cases:
    1. prove someone other than the D is the source of semen, injury, or other physical evidecne
    2. specific instances of sexual behavior between the victim and the defendant to prove consent
  • Civil Cases:
    1. probative value substantially outweighs the danger of unfair prejudice (Reverse 403)
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22
Q

When is Character Directly in Issue?

A

Essential element of a claim or defense:

Examples:

  • defamation : truth is ad efense
  • negligent hiring or entrustment (hired/entrusted a person)
  • child custody cases (parent’s character is at issue

*** When character directly in issue, all forms of character evidence are admissible

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23
Q

Independent Relevant Evidence

A
  • motive (motive to kill)
  • intent ( intent to sell drugs)
  • mistake (absence of) (if the defense is an accident)
  • identity (common M.O)
  • common plan or scheme ( you stole a car in furtherance of the crime)

** this is not a comprehensive list

*** requirements for admissibility: sufficient evidence to support a jury finding and the regular 403 test

** in criminal case: prosecutor must provide reasonable notice that they intend to offer this at trial

24
Q

Defendants similar misconduct in sex-crime cases

A

in a criminal or civil case where the D is accused of committing an act of SA or child molestation, evidence of D’s other acts of SA or CM are admissible

  • this is the one case where you can show character in conformity
25
Q

Methods of authentication

A
  • Opponent’s Admission: opponent has admitted its authenticity or acted upon it
  • Eyewitness testimony: testimony of anyone who saw it executed or heard it acknowledged
  • Handwriting verifications:
    • opinion of a lay witness who has familiarity with the alleged writer’s handwriting (not acquired for purposes of the current litigation)
    • opinion of the expert: comparing samples to the alleged writer’s handwriting or
    • jury’s comparison
  • ancient documents:
    • is at least 20 years old;
    • is in a condition that creates no suspiion as to it authenticity; and
    • was found in a place where such a writing would likely be kept
  • Reply Letter doctrine: evidence that it was written in response to a communication sent to the alleged author
  • photographs: if verified by the witness as a fair and accurate representation of those facts (doesn’t have to be the photographer)
26
Q

Authentication of Oral Statements

A
  • Voice identification: can be identified by the opinion of anyone who has heard the voice at any time (even if in anticipated for litigation)
  • Telephone Convos:
    • recognize the other party’s voice
    • speaker had knowledge of facts that only a particular person would
    • they called the number and a voice answered as the person or their residence or
    • they called a business and talked with the person answering about matters regarding the business.
27
Q

Self Authenticating Documents:

A

Extrinsic evidence of authenticity is not required for the following:

  • thnk of like newspapers, periodiclas
  • notarized documents
  • business records
28
Q

Best Evidence Rule

A

to prove the content of a writing, recording, or photograph, the original writing must be produced if the terms of the writing are material

29
Q

When does the Best Evidence Rule Apply?

A
  1. Where the writing is a legally operative or dispositive instrument (writing itself creates rights and obligations)
  2. where the knowledge of a witness results from having read it in the writing
30
Q

When Doesn’t the Best Evidence Rule Apply?

A

When the witness has personal knowledge of the facts

31
Q

Original v Duplicate

A

Original:

  • the writing itself or any counterpart
  • includes any printout of electronically stored information

Duplicate:

  • exact copy or an original (like a photocopy)
32
Q

When are duplicates not admissible?

A
  • the circumstances make it unfair to admit the duplicate; or
    • genuine question is raised about the authenticity of the original
33
Q

Admissibility of Secondary Evidence

A

Handwriting falls here

  • if the proponent cannot produce the original writing in court, they may offer secondary evidence if a satisfactory explanation is given.
34
Q

Excuses for non-production of original

A
  • loss or destruction (unless in bad faith)
  • original can’t be obtained by any available judicial process (possession outside jurisdiction
  • in the possession of an adversary
35
Q

Elements of a Competent Witness

A
  • personal knowledge
  • oath to testify truthfully
36
Q

Disqualifications of Witness

A
  • children: depends on the capacity and intelligence of the particular child
  • insanity: if they don’t understand the obligation to speak truthfully and have the capacity to testify accurately
  • judge and jurors can’t testify as witnesses to the case they are sitting in
37
Q

When can a juror testify

A
  • whether any extraneous prejudicial information was improperly brought
  • an outside influence was improperly brought
  • mistake on the verdict form
  • juror made a clear statement that they relied on racial stereotypes or animus to convict a criminal defendant - significant motivating factor
38
Q

Dead Man Statute

A

interested person is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased.

39
Q

When are Leading questions allowed?

A
  • generally allowed on cross
  • allowed on direct when:
    *
40
Q

When are Leading questions allowed?

A
  • generally allowed on cross
  • allowed on direct when:
    • witness needs help responding because of memory
    • witness is hostile
    • to elicit introductory matter
41
Q

Scope of Cross Examination

A
  • scope of direct examination and
  • matters that test the credibility of the witness
42
Q

Refreshing recollection

A
  • using any writing or object for the purpose of refreshing their present recollection
  • may not read aloud and the writing is not in evidence

** no concerns about authenticity as it is not into evidence

43
Q

Adverse Party’s options for Refreshed Recollection

A
  • have the writing produced at trial
    • at criminal trial failure to produce: judge must strike
  • cross examine the witness about the writing; and
  • introduce portions of the writing relating to the evidence
44
Q

Past Recollection Recorded:

A
  1. witness has insufficient recollection to testify
  2. the witness had personal knowledge when record was made
  3. made by witness or was adopted
  4. record was made when the matter was fresh
  5. witness vouches for the accuracy of the record at the time it was made/adopted

** can’t be admitted into evidence unless offered by the adverse party

45
Q

Opinion by Lay Witness

A
  1. rationally based on the witness’s perception
  2. helpful to a clear understanding of the witness’s testimony or helpful to the determination of a fact in issue and
  3. not based on scientific, technical, or other specialized knowledge

** can’t give an opinion on whether they acted as an agent or whether a contract was made

46
Q

Admissibility Expert Opinion

A
  1. subject matter one with scientific, technical, or other specialized knowledge
  2. opinion must be based on sufficient facts or data
  3. opinion must be the product of reliable principles and methods; and
  4. the expert must have reasonably applied the principles and methods to the facts
47
Q

Proper Factual Basis for Expert Testimony

A
  1. based on expert’s own personal observations
  2. facts made known to the expert at trial; or
  3. facts supplied to the expert outside the courtroom are the type reasonably relied upon by other experts. Need not be admissible as evidence
48
Q

What is the purpose of the Daubert test?

A

test the reliability of experts’ principles and methodologies

49
Q

Daubert Factors

A
  • testing of principle or methodology
  • rate of error
  • acceptance by experts in the same discipline
  • peer review and publication
50
Q

Learned Treatises:

A
  • must be established as reliable authority by expert testimony or judicial notice
  • must be used in the context of expert testimony
51
Q

Expert Opinion on Ultimate Issues

A
  • generally admissible
  • not admissible in criminal case where D’s mental state constitutes an element of the crime or defense
52
Q

Exceptions to Rule Against Bolstering

A
  1. evidence of a timely complaint or
  2. prior statement of identification
53
Q

Impeachment of Prior Inconsistent Statements

A
  • inconsistent statement and
  • proper foundation is laid (for extrinsic evidence to be admitted)
    • witness is given an opportunity to explain or deny and adverse party is given an opportunity to examine (before or after)
      • doesn’t apply if it applies under the party opponent exception
54
Q

Impeachment by Bias or Interest

A
  • for extrinsic evidence: must first be asked about the facts that show bias or interest
55
Q

Sensory Deficiencies:

A
  • faculties are so impaired as to make it doubtful that they could have perceived those facts
  • no foundation requirement for proving with extrinsic evidence

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