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Cards I've Updated > Evidence > Flashcards

Evidence Flashcards

1
Q

Relevance

A

Evidence is relevant if it has any tendency to make a fact more or less probable and the fact is of consequence in determining the action.

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2
Q

Rule 403 Exclusion

A

The court may exclude relevant evidence if its probative value substantially outweighed by a danger of:

  • unfair prejudice
  • confusing the issue
  • misleading the jury
  • undue delay
  • wasting time
  • or being needlessly cumulative
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3
Q

Subsequent Remedial Measures

A

such evidence is NOT admissible to prove:

  • negligence
  • culpable conduct
  • a defect in product or design OR
  • need for a warning or instruction

But maybe admitted for impeachment, control, ownership, and feasibility.

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4
Q

Pleas & Plea Negotiations

A

The following are NOT admissible in a subsequent civil or criminal case:

a) statements made during plea discussions;
b) a nolo contendere plea (D doesn’t admit or dispute the charge); OR
c) a guilty plea that is later withdrawn.

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5
Q

Paying or Offering to Pay Medical Expenses

A

NOT admissible to prove liability, BUT any related statements or factual admissions are admissible.

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6
Q

Liability Insurance

A

NOT admissible to prove culpability, BUT admissible for other purposes (i.e. ownership, control, agency).

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7
Q

Compromise/Settlement Offers & Negotiations

A

Statements and offers made during settlement negotiations are NOT admissible to:

a) prove the validity or amount of a disputed claim; OR
b) impeach by a prior inconsistent statement.

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8
Q

Authentication of Evidence – All evidence MUST be authenticated before being admitted.

A

Physical Evidence → through witness testimony or by evidence that shows it has been held in a substantially unbroken chain of custody.

Voice Recordings → by anyone who has heard the person speak and identified the recorded person as the speaker.

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9
Q

Best Evidence Rule – the original writing, recording, or photograph is required to prove its content UNLESS:

A
  1. it’s a reliable duplicate (a photocopy);
  2. all the originals are lost or destroyed, and not by the offering party acting in bad faith;
  3. an original cannot be obtained by judicial process;
  4. it was not produced after proper notice was given to the party in control and against whom it would be offered against; OR
  5. it’s not closely related to a controlling issue.
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10
Q

Character Evidence

A

Characte evidence is NOT admissible to prove propensity (that a person acted in conformity with a character trait on a particular occasion)

  • but allowed for when character is an issue (defamation)
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11
Q

Character Evidence: Criminal Cases for D and V

A

D can introduce good character evidence if:

(1) Pertinent to the crime charged (e.g., if the crime charged involves violence, the defendant may only put on character evidence of non-violence); AND
(2) Through reputation or opinion testimony (NOT specific instances of conduct).

  • Prosecution is NOT allowed to prove D acted in accordance with D’s character trait unless D opens the door.
    • Then can introduce character evidence by calling own witness (who is limited to reputation or opinion), OR cross-examine defendant’s character witness (and can ask about specific instances)

V’s character (not involving rape)

A criminal defendant may introduce reputation or opinion testimony of the victim’s character if it is relevant to one of the defenses asserted. If the defendant does so, the prosecution may rebut by presenting evidence that:

The defendant possesses the same character trait;

OR

The victim possesses a relevant positive character trait.

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12
Q

Character Evidence: Civil Cases

A

Character evid generally not admissible in a civil case except for sexual misconduct exception:

Victim’s character (alleged sexual misconduct):

− Victim’s sexual behavior/predisposition is admissible if its probative value substantially outweighs the danger of (1) harm to any victim,

AND (2) unfair prejudice to any party.

− Victim’s reputation is admissible ONLY IF the

victim has placed it in controversy.

methods on direct: Opinion and Reputaion

methods on cross: Opinion, Reputation and specific bad acts.

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13
Q

Prior Bad Acts (MIMIC) + How to Offer

A

Generally NOT ADMISSIBLE to show propensity

  • Admissible: (MIMIC) Motive, Identity, Absence of Mistake, Intent, Common Scheme or Plan.

To offer evid: MUST show:

  1. prior act was committed (by a preponderance) AND
  2. probative value substantially outweighs the danger of unfair prejudice.
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14
Q

Sexual Assault / Child Molestation Exception:

A

Prior bad acts of sex crimes are ADMISSIBLE if D is accused of such conduct.

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15
Q

Habit/ Routine Practice

A

Admissible to show that a person acted in accordance with their habit or routine practice (i.e. putting a seatbelt on)

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16
Q

Impeachment:

Prior Inconsistent Statements – Admissible to impeach a witness.

Extrinsic Evidence

A

Extrinsic Evidence is admissible ONLY IF:

1) Relevant to a material issue at trial (one other than the witness’s credibility); AND
2) Proper foundation is shown (witness is first given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it).

*The above requirements DO NOT apply when extrinsic evidence is offered against a party opponent.

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17
Q

Impeachment:

Prior Inconsistent Statements – Admissible to impeach a witness.

A

− Need not show/disclose contents of the statement to the witness during examination, BUT must show it to an adverse party’s attorney upon request.

18
Q

Impeachment:

Prior Convictions

A

Evidence of Prior Convictions may be admitted in certain instances:

  • Felony/ Misdemeanor for Dishonesty: always admissible to impeach.
  • Misdemeanors are not impeachable.
  • Pardon / Annulled Exception→Evidence of a conviction is NOT admissible if it’s been pardoned or annulled based on a finding of innocence.
19
Q

Impeachment:

Felonies that DO NOT involve Dishonesty:

A

− Civil & Criminal Cases → Admissible if witness is not the Defendant (subject to Rule 403 exclusions).

− Criminal Cases (only) → Admissible if D is the witness but only if the probative value outweighs any prejudicial effect.

20
Q

Impeachment:

10-Year Exception to Convictions

A

If 10-years have passed (from conviction or release from jail – whichever is later), the conviction is NOT admissible unless:

1) its probative value outweighs its prejudicial effect; AND
2) the proponent provides reasonable written notice to the adverse party.

21
Q

Impeachment:

Specific Instances of Conduct

A

A witness’ credibility may be attacked on cross examination with specific instance of conduct (prior bad acts) if the conduct is probative of the witness’ character for truthfulness and untruthfulness.

− Extrinsic evidence is NEVER admissible to attack or support such instances of a witness’s credibility.

22
Q

Impeachment:

Character for Truthfulness – A witness’s credibility may be attacked or supported by:

A

a) Reputation testimony about the witness’s character for truthfulness / untruthfulness;

OR

b) Opinion testimony.

*BUT, evidence of the witness’s truthful character is admissible ONLY AFTER ATTACKED.

23
Q

Presentation of evidence:

Refreshing Recollection

A

Refreshing a witness’ recollection using a doc is permitted when the witness:

  1. had personal knowledge of the matter but
  2. is unable to recall it while testifying.

only opposing party may offer into evidence the item used to refresh.

24
Q

Lay Witness Testimony

A

any person who gives testimony in a case that’s not an expert

  1. Must be competent to testify AND have personal knowledge.

May offer opinion ONLY if:

  • based on perception
  • establishes a fact or helps understand testimony AND
  • not based in Science tech or special knowledge.
25
Q

Expert testimony is permitted when:

A

1) witness is qualified as an expert;
2) opinion is helpful to the jury;
3) witness believes in the opinion to a reasonable degree of certainty;
4) opinion is supported by sufficient facts or data; AND
5) opinion is based on reliable principles and methods that were reliably applied.

Reliability→is based on (1) publication and peer review, (2) error rate, (3) testability, AND (4) if it’s generally accepted in the field.

26
Q

HEARSAY

A

Hearsay is an out of court statement that is offered for the truth of the matter asserted.

Admissible only if it falls under an exception or exclusion.

Statement = a person’s oral or written assertion.
*A nonverbal act is a statement if it’s intended as an assertion.

27
Q

Non- Hearsay Statements

A

If a statement is offered to prove something other than its truth, it’s not hearsay and is admissible.

28
Q

Common Non-Hearsay Statements:

A

1) Verbal acts of independent legal significance.
2) To show the effect on the listener.
3) Prior inconsistent statement used to impeach.
4) Circumstantial evidence of the speaker’s state of mind (e.g. prove someone’s crazy).

29
Q

Hearsay Exclusions:

Prior Statements by a Party Opponent

A

A statement by a party opponent is:

1) Any statement offered against an opposing party, AND
2) That is:
a. made by the party (or their representative);
b. adopted or believed to be true by the party (silence may be sufficient);
c. made by an authorized person;
d. made by an agent/employee of the party acting within their scope; OR
e. made by a co-conspirator.

30
Q

Hearsay Exclusions:

Prior Statements by a Witness

A

A prior statement by a declarant-witness is deemed non-hearsay if:

1) Declarant testifies;
2) Declarant is subject to cross-examination about the prior statement; AND
3) The prior statement:
a) was inconsistent with prior-testimony and given under oath in a prior court proceeding or deposition;
b) declarant identifies a person as someone they perceived earlier; OR
c) is consistent with prior testimony and is offered to either (i) rebut that the declarant is lying, or (ii) to rehabilitate declarant’s credibility.

31
Q

UNAVAILABILITY REQUIREMENT: A declarant is deemed to be unavailable as a witness if the declarant:

A
  1. Is exempted from testifying because the court rules that a privilege applies;
  2. Refuses to testify despite a court order to do so;
  3. Testifies to not remembering the subject matter;
  4. Cannot be present or testify because of a death or illness; OR
  5. Is beyond the reach of a court’s subpoena and cannot be procured by reasonable means.

FORFEITURE BY WRONGDOING: A party forfeits her hearsay objection if the party intentionally or wrongfully makes the declarant unavailable to testify as proven by a preponderance of the evidence.

32
Q

Hearsay Exceptions Requiring Unavailability

A

Unavailability is requirement for all

  1. Dying Declaration
    1. Believed death was imminent
    2. Statement is about about the cause/circumstances of death
    3. *Only allowed in a civil or homicide case
  2. Statement Against Interest
    1. Statement is against Declarant’s self-interest and
    2. A reasonable person would not have made the statement unless it were true.
  3. Former Testimony
    1. Statement given at trial/hearing/deposition (not grand jury)
    2. Opposing party had opportunity to cross examine
  4. Person/ Family History
33
Q

Hearsay: Where Availability is Immaterial (Exceptions)

A
  1. Present Sense impressions
    1. describing event made by declarant while observing the event OR immediately thereafter (few minutes max)
  2. Excited Utterance
    1. statement relating to a startling event or condition + made while declarant was still under the stress of excitement from event.
  3. Present State of Mind
    1. then existing mind state (motive, intent, or plan) or emotional, sensory, or physical condition.
  4. Business Records
    1. record of event
    2. kept in regular course of business
    3. made near time of matter
    4. made by person with knowledge
    5. regular practice of business; and
    6. the opponent can’t show a lack of trustworthiness in statement
  5. Past Recorded Recollection
    1. Witness had personal knowledge
    2. writing made/adopted by witness
    3. made while event fresh
    4. accurate
    5. witness no longer remembers the event.
      1. *Can only be read into evidence unless other party admits it as exhibit.
  6. Statements Made for Medical Diagnosis/Treatment.
    1. is made for (and reasonably pertinent to) medical diagnosis or treatment; AND
    2. describes medical history or symptoms (past or present).

*Statements that are not relevant to medical diagnosis or treatment DO NOT fall within this hearsay exception.

34
Q

Right to confront (6th Am.)

A

Confrontation Clause gives a criminal defendant the right to confront witnesses against him.

35
Q

The use of an out-of-court statement (even if within a hearsay exception) violates the Confrontation Clause when:

A

1) The statement is testimonial;
2) Declarant is unavailable to be cross-examined at trial; AND
3) D did not have an opportunity to cross-examine the declarant before trial.

36
Q

Testimonial Statements for Confrontation Clause

A

Statements made to:

a) Grand juries; OR
b) The police whose primary purpose (when viewed objectively) was to collect testimony to be used at a later trial.

*A statement to assist the police in an ongoing emergency is NOT testimonial.

37
Q

Physician Patient Privilege

A

Most States : recognize the privilege

  • confidential patient communication
  • made to a physician
  • for the purpose of medical diagnosis or treatment

patient holds privilege but may be waived when med condition placed at issue.

*Fed court does not recognize.

38
Q

Spousal Privileges:

Spousal Immunity

A

– A witness-spouse in a valid marriage MAY refuse to testify against their spouse in a criminal case.

− Only the witness-spouse holds this privilege – but privilege ends after divorce.

*Spousal immunity DOES NOT apply in civil cases.

39
Q

Spousal Privileges:

Confidential Marital Communications

A

Communications between spouses are privileged if:

1) made during the course of a valid marriage;

AND

2) were intended to be confidential.

*Either spouse may assert the privilege, and it applies after divorce.
*Privilege applies in BOTH civil and criminal cases.

40
Q

Spousal Privileges DO NOT apply:

A

a) in cases between the spouses; OR
b) when a spouse commits a crime against the other spouse or their children.

41
Q

Attorney-Client Privilege

A

Protects confidential communications between and attorney and client if:

1) intended to be confidential; AND
2) made to facilitate legal services.

The client holds the privilege and may waive it by disclosing info to a third-party (but it’s not waived through inadvertent disclosure).

Attorney-Client Privilege DOES NOT apply when:

a) legal services are sought to further a crime or fraud;
b) a litigation is related to a breach of duty between the attorney and client; OR
c) joint clients are later involved in civil litigation against each other.

42
Q

Attorney Work Product Doctrine

A

Protects from disclosure all materials prepared by an attorney (or his agents) in anticipation of or during litigation.

− Exception → If a party shows: (1) a substantial need exists; AND (2) a substantial equivalent cannot be obtained without undue hardship.

Cards I've Updated (17 decks)

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