Evidence Flashcards
Collateral impeachment rule
Don’t wate time attacking witness during impeachment on a collateralmatter
Lay witness testimony
(1) rationally based on what witness percevied
(2) helpful to trier of fact
(3) not based on scientific/technical/specialized knowledge
Expert witness testimony
(1) subject matter requires specialized/techincal/scientific knolwedge
(2) opinion based on sufficient facts/data
(3) based on reliable principles and methods
(3) Expert reliably applied principles and methods
Expert must also
(1) possess reasonably probability about opinion
(2) Learned treatise admissible as substance or impeachment if established as reliable aturhority through testimony of expert (on cross or direct)
(3) opinion on ultiamte issue is allowed except crim D’s mental condition where element of crime
(4) PK Not a requirement - can testify based on things they’ve personally observed, things they learned in teh trial, or thins reasonbly relied upon in the profession
Character evidence - civil cases where character is at issue
negligent entrustment, defamation, civil fraud, child custody, self-defense defense
Impeachment methods - 5
(1) Prior inconsistent statements
- -> Also comes in substantively if made under oath
- -> EE allowed if witness given opp to explain/deny or its an opposing party statement
(2) Bias
- -> EE allowed
(3) Sensory deficiencies (including memory)
- -> EE allowed
(4) Opinion/reputation evidence of truthfulness
(5) Prior convictions
- -> Crime involving dishonesty, comes in
- -> Felony, last 10 years, subject to balancing test
(6) Prior bad acts
- -> NO EE allowed
- -> Ask on Cross only; can’t ask about arrests
- -> Allowed substantively for MIMIC
Balancing test: Exclude if
probative value is substantially outweighed by… danger of unfair prejudice
confusion of issues
misleading the jury (give undue weight ot the eivdnece)
Waste of time
Unfair surprise is NOT a valid ground
Similar occurances
generally iandmissible except….
(1) plaintiff’s accident history relevant for (1) prior false claims or prior accidents injurying same body part when casusation of injury is at issue
(2) Substnatially similar circumstnaces (e.g., prior accidents caused by same event) admissible if (1) existance was of a dangerous condition; (2) causation and (3) D had notice
(3) absence of similar complaints; for lack of knolwedge of danger
(4) preivous similar acts admissible to show INTENT or MOTIVE
(5) habit if (1) frequency of conduct and (2) particularity of cirumcstances
Habit
(1) frequency of conduct and (2) particularity of cirumcstances
look for always, invariably, instinctively
PUblic policy reasons
Liability, subseuqnet remedial measures, settlement offers or negotiations, offers to pay medical expenses, withdrawn guilty please
Character evidence - criminal
remember, if D opens door, P can reput wiht R/O testimony of hteir own. They can also ask the defendant’s character witness “did you know” or “have you heard”, but no extrinsic evidence is allowed to rebut the response
Sex crimes cases
D’s similar conduct is always allowed! Even to show propensity, must give 15 days notice. Civil or criminal
V’s past sexual history
–> specific instances can be used to show someone other than D is source of injury, semen, physical evidence CRIM
–> specific instances of sexual behavior between V/C (crim)
See taylor’s chart
Authenticate REal Evidence
(1) testimony that they receognize it (gun is the one at the crime scene or
(2) evidence of unbroken chain of possession
Recorded recollection - requirements for admissability (5)
(1) witness must have insufficient recollection, even after refreshing
(2) witness must have made memo/doc/etc or was adopted by tehm
(3) witness has personal knolwedge of facts in the recrod when teh record was made
(4) record was made when teh matter was fresh in teh witness’s mind
(5) REcord accurately reflects witness’s knowledge
Recorded recollection - requirements for admissability (5)
(1) witness must have insufficient recollection, even after refreshing
(2) witness must have made memo/doc/etc or was adopted by tehm
(3) witness has personal knolwedge of facts in the recrod when teh record was made
(4) record was made when teh matter was fresh in teh witness’s mind
(5) REcord accurately reflects witness’s knowledge
Daubert factors - reliablity of expert testimony
(1) Testing of principal or methodology
(20 rate of error
(3) acceptance by experts in same discipline
(4) peer review and publication
Non-hearsay opposing party
employee, partners, co-conspirators comine here
employee: must be (1) made in scope of agency/employment (2) during excistance of eagency/employmetn relatinoship
Non-hearsay: prior statements
Must be made by witness who is testifying/avaialble for cross at CURRENT trial
(1) prior inconsistent statements made under oath
(2) prior consistent statemetn offered to rehabilitate (e.g., rebut charge of lying, rehabilitae)
(3) prior identification
Former testimony
(1) testimony must have been given under oath and
(2) party had opportunity to cro-ssexamine at prior proceeding
- -> this excludes prior grand jury statements (unlike in priori nconsistent statements)
Dying declaration
(1) homocide or civil case
(2) declarant believed death was imminet and
(3) statemetn concerned cause/circumstances
Business record
(1) business/organization
(2) made in regular course of conduct
(3) by someone with personal knolwege / business duty to transmit
(4) made at or near the time of the event
Rule of completeness
only applies to writings/recorded statements
if one part is admitted, rest can be in fairness
