Evidence Flashcards
Business Records Exception
- Made in the regular course of business;
- Regular practice of the business to make the record;
- Made at or near the time of the event;
- Made by a person whose duty it was to make the record and who had personal knowledge of the event; and
- Authenticated
Medical Diagnosis or Treatment Exception
- Describes a person’s’ medical history, past or present or their cause is admissible if
- It was made for, and was reasonably pertinent to medical diagnosis or treatment
Marital Communications Privilege
- Both spouses hold the privilege not to testify as to a confidential communication made between spouses during the marriage
- Communication in reliance of the intimacy of marriage
- Survives the marriage
Prior Inconsistent Statement
- Can be proven by examination
- Can be proven with extrinsic evidence if:
- Witness must be given an opportunity to explain or deny (before or after introducing); and
- The statement must be relevant to some issue in the case
Impeaching By Prior Bad Acts (cross-examination and extrinsic evidence)
- Can ask the witness if probative of truthfulness
- Cannot introduce extrinsic evidence
Who can introduce a document used to refresh recollection?
- Only adverse party
Evidence of Subsequent Remedial Measures
- Inadmissible to prove negligence
- Admissible to prove ownership, feasibility of repair, or destruction of evidence
Settlement Offers
- Inadmissible to prove liability for a disputed claim (at the time the statement was made)
Offers to Pay Medical Expenses
- Inadmissible to prove liability (whether or not there’s a disputed claim)
Evidence of a Victim’s Past Sexual Behavior in a Civil (non-rape) Case
- Admissible if it is otherwise admissible under FRE; and
- Its probative value substantially outweighs the danger of harm to the victim and unfair prejudice
Common Non-Propensity Purposes for Character Evidence
-
MIMIC
- Motive
- Intent
- Mistake (lack of)
- Identity
- Common plan or scheme
Best Evidence Rule
- To prove the contents of a writing
- writing is legally operative; or
- knowledge of the witness results from having read it (as opposed to personal knowledge)
- Original writing must be produce, unless there’s a satisfactory excuse
Judge’s Determination of Expert Witness (Daubert Factors)
-
TRAP
- Testing of principle or methodology
- Rate of error
- Acceptance by experts in the same discipline
- Peer review and public
Hearsay Exceptions Where Unavailability is Required
- Former Testimony
- Statement Against Interest
- Dying Declaration
- Statement of Personal of Family History
- State Offered Against a Party Procuring Declarant’s Unavailability
When Are the Opinions of a Lay Witness Admissible
- Rationally based on the perception of the witness
- Helpful to a clear understanding of the testimony or to the determination of a fact in issue; and
- not based on scientific, technical, or other specialized knowledge
Character Evidence in a Civil Case
- Inadmissible unless directly as issue
Excited Utterance
- Statement that relates to a startling event
- Made while declarant was under the stress of the excitement
Confrontation Clause (hearsay in criminal trial)
- Will not be admitted when:
- It is offered against the accused
- The declarant is unavailable
- The statement was testimonial (non-testimonial = ongoing emergency) in nature, and
- The accused had no opportunity to cross examine
Impeachment w/Prior Conviction
- Witness may be impeached with a conviction for
- Any felony, or
- Any crime involving dishonesty or false statement (no discretion)
- Crime not involving dishonesty or false statement subject to 403 balancing test
