Evidence Flashcards
The recorded recollection hearsay exception allows a record to be read into evidence if it
(1) concerns a matter that a witness once knew but cannot recall at trial,
(2) was made or adopted by the witness when the matter was fresh in his/her mind, and
(3) accurately reflects the witness’s personal knowledge at the time it was made.
***But only an adverse party may introduce the record.
Pleas, Plea Discussions, and Related Statements
(a) Prohibited Uses.
FRE 410 bars evidence of (1) withdrawn guilty pleas, (2) nolo contendere pleas, (3) statements made during plea proceedings, and (4) statements made during plea negotiations that did not result in a guilty plea or resulted in a guilty plea that was later withdrawn.
Under the best evidence rule… when the contents go toward a collateral issue.
an original or reliable duplicate is not required, and other evidence of content is admissible,
The marital-communications privilege protects confidential communications made between spouses during the marriage. Under the majority view, either spouse may assert the privilege—even after termination of the marriage—and
(1) refuse to testify about the communication or (2) prevent the other spouse from testifying.
Nonhearsay statement by party-opponent
FRE 801(d)
Out-of-court statement is nonhearsay if offered against opposing party AND:
- made or adopted by opposing party
- made by person authorized by opposing party to make statement on subject
- made by opposing party’s agent/employee on matter within scope of relationshipOR
-made by opposing party’s coconspirator during & in furtherance of conspiracy
A lay witness may testify to any relevant matter of which he/she has personal knowledge. This requires that the witness
(1) perceived the matter firsthand and (2) have a present recollection of that observation.
An expert opinion based upon otherwise inadmissible facts or data is admissible if
experts in that particular field would reasonably rely on the facts or data in forming an opinion on the subject.
Communications between an attorney and client are privileged and protected from disclosure, discovery, or admission in a legal proceeding if they were
(1) made to obtain legal advice and/or representation and (2) intended to be and kept confidential.
This privilege does not apply to communications in which a client seeks legal advice in furtherance of an ongoing or future crime or fraud.
Federal Rule of Evidence 302 governs the application of law to presumptions in federal civil cases. Under this rule,
when state law supplies the rule of decision for a claim or defense (i.e., in diversity cases such as this one), the court should apply state law to determine the effect of a presumption on the claim or defense.
Posttrial juror testimony is admissible if it concerns
(1) extraneous prejudicial information brought to the jury’s attention,
(2) an outside influence improperly brought to bear on a juror, or
(3) a mistake made in entering the verdict onto the verdict form.
Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if
the impeached witness has the opportunity to explain or deny—and the adverse party can examine the witness about—the statement (or if justice so requires).
A defendant’s statements during plea negotiations are generally inadmissible against the defendant. However, a defendant may waive this protection if the waiver is made
knowingly and voluntarily.
The court must decide preliminary questions of fact related to whether evidence is admissible, a privilege exists, or a witness is qualified. Any hearing on these matters must be conducted outside the jury’s presence if
(1) the matter involves the admissibility of a confession, (2) a defendant in a criminal case is a witness and so requests, or (3) justice so requires.
Self-authenticating evidence
FRE 902
- Public documents with official’s signature & certification by second official or seal
- Certified copies of public records & records of regularly conducted activities
- Newspapers, periodicals & official publications
- Documents with trade inscription
- Acknowledged documents
- Commercial paper with signature & related documents
Authenticating an item of evidence that is a physical representation of something that could not otherwise be seen requires proof that
(1) the process for creating the evidence was accurate, (2) the machine that produced the evidence was working properly, and (3) the operator of the machine was qualified to operate it.
