Evidence Flashcards
what are some reasons for a Rule 403 relevance ruling against evidence
undue prejudice, misleading th ejury undue delay, cumulative evidence
what is the rule 403
allow evidence unless prejudice outweighs probative value
is prior accident history or filing a similar tort claim admissible
no, just shows carelessness
what’s the relevance rule for prior accidents involving D
generally inadmissible but if happens under similar circumstances can be used to show existence of dangerous condition 2 condition caused accident 3 D had notice of condition
what is habit evidence
frequency of particular conduct
what words should you look for to denote habit evidence
always, automatically, instinctively
liability insurnace
can show ownership, impeach, as part of an admission of liablity
cant show wrongful conduct or negligence
subsequent remedial efforts
cant use to show negligence, defect, need for warning, culpability
can show ownership, rebut non-feasability arguemnt (you can fix it), prove party destryed evidence
is evidence of settlement grounds for impeach on bias
yes, ONLY to impeach for bias
what is the exception to exclusion of civil and settlement negotiation
settlement w/ govt in civil suit can be used in criminal suit
plea discussions
inadmissible including offers to plead guilty withdraw guilty please no conest statements of fact made during plea discussions
HOWEVER, an actual guilty plea is admissible as statement of an opposing party
what is admissible if accompanying an offer to pay medical expenses
any voluntary accompanying facts, EXCEPT an offer to settle the case. Offer to pay medical bills is not admissible!!!!
what is the rule for character evidence in criminal cases
prosecution: can’t intro evidence of D bad character UNLESS D intro evidence of good character.
D can intro opinon or reputation evidence of good character
is a D character at issue when they testify for themselves in a criminal case
No, their credibility is at issue, or if they testify to their own good character then P can rebut
How can P rebut D character witnesses
with specific “did you know” acts of bad character (shows lack of knowledge). Can include prior arrests of D
P can call own character witnesses for rep and opinion testimony
How can a D challenge a victims character in a criminal case
opinion or reputation evidence ( usually only relevant in self defense cases)
is character evidence admissible in civil cases
no, not to show conformity can be used to show an essential element of case in -defamation -negligent hiring -child custody all three forms admissible
when is character evidence relevant if independantly relevant in a civil case OR a criminal case
to prove
- motive
- intent
- mistake
- identity
- common plan scheme
what are the method of authentication
opponents admission
eyewitness
verified handwriting (opinion of a lay witness is fine, jury can compare, or expert)
ancient documents (over 20 years)
photos and videos must be id by a witness saying they are fair and representative
how do you authenticate oral statement
voice id (anyone that’s heard the voice, uncluding after trial began)
what is the best evidence rule
to prove content of a writing, the orginal doc msut be produced if the terms are material
when does best evidence rule apply
when writing is legally operative or dispositive instrument OR where the knowledge of a witness converning a facet results from having read it (recorded recollection)
Are duplicates admissible for originals according to best evidence rule
yes, so long as it is not unfair to use duplicate and no genuine question raised to authenticity
are there valid excuses for non-production of original in best evidence rule
yes
- destruction
- can’t be obtained by judicial process
- in poss of adversary who fails to produce
what are exceptions for best evidecen rule
voluminous records (summary fine)
collateral materials
testimony of opponent
how do you authnticate real evidence
witness testimnoy OR unbroken chain of custody
are witnesses presumed comptent
yes
how does a witness qualify for competence (if challenged)
must have personal knowledge of matter they are testifying about AND take an oath
when can you aask leading questions on direct
hostile witness
prelim matters
witness needs helps responding bc loss of memory
what is the scope of cross
scope of direct or matters to test witness/evidence credibility
can a witness view a writing to refresh recollection
yes, dont read and not entered into evidence
what happens when a past recollection does not refresh a witnesses memory
can read the record itself into evidence so long as there is a proper foundation
- witness had insufficient recollection
- witness has personal knowledge of the facts in the record WHEN the record was made
- record was made by the witness or under the witnesses direction
- the record was made when the matter was fresh in the witensses mind
- witness must vouch for accuracy of record
- -cant be offered as exhibit unless offered by adverse party
what is the general rule for opinion testimony
inadmissible
when is opinion testimony admissible for laywitness
- rationally based on the witnesses perception
- helpful to a clear understanding of the witnesses testimony or helpful to a fact at issue
- not based on scientific technical or other specialized knowledge
what are examples of acceptable laywitenss testimony
general appearance state of emotion of a person voice/handwriting id speed of a moving object value of the witnesses own services rational nature of anothers conduct intoxication level
what are the quals for opinion testimony of an expert witness
- scientific, specialized in nature
- based on sufficeint facts
- product of reliable principles
- expert reliably applied those principles to facts of case
what provides the factual basis of an experts opinon
personal observation
facts made known to the expert at trial
facts supplied to the expert outside the courtrooom of a type reasonably relied upn by other experts in the field
what factors does a jedge consider for reliability of expert testimony
testing of prinicple or method
rate of error
accpetance by experts int he field
peer review/publication
can expert opine on mental state if it is at issue in a criminal case
No, but can if
not at issue in criminal case
is not a criminal case
is evidence to accredit or bolster credibility admissible
no, UNLESS the witness has been impeached
who can impeach a witness
any party
when can a party impeach a witness
cross or extrinsic evidence
what are the methods of impeachment
prior inconsistent statements (facts specific to case)
bias (fsc)
sensory def (fsc)
contradiction (fsc)
opinion/rep for untruthfulness (general bad character for truthfulness)
prior convictions (gbct)
bad acts (gbct)
what is needed for extrinsic evidence of prior inconsistent statement to impeach a witness
foundation
relevance to issue in case
exception: if previous statement made under oath, OR was opposing party statement
court has discretion to disregard foundation req as justice reqs
are there foundation reqs for sensory def claims to impeach a witness, and list examples
no
-bad eyesight
intoxication
poor memory
what is majority rule on impeachment by bias
must first be asked about bias on cross, then can intro extrinsic evidence
can a witness be impeached by a felony not related to dishonesty
yes, BUT court has discretion to exclude using one of two tests:
- for crim D, P must show prbative value outweighs prejudicial harm
- Rule 403 for every other witness
can party intro specifc instances of bad acts involing untruthfulness
yes, on cross, no extrinsic evidence permitted
what are components of hearsay
an out of court statement
is made/referenced by someone during trial
to prove the truth of the matter asserted
examples of double hearsay
when the accident happened, john told me Mary said she was fine
-if offered, both statements must be admissible
what are some common non-truth purposes for non-hearsay statements
verbal acts or legally operative facts, statements used to show effect on listenr, statements offered as circumstantial evidence of declarants mind (almost always for knwoledge or insanity)
what prior statements are ruled non-hearsay
prior statements of testifying witness during cross WHEN:
- statement is ID of person perceived before
- inconsistent statement
- offered to rebut a lying charge or rehab testimony of another
what statements are non-hearsay
the prior statement exceptions
statements attributable to an opposing party, an adopted statement, vicarious statements (authroized spkeman, agent/employee, co-conspirators,)
when is silence admissible as an acquiesence
when declarant
- heard and understood the statement
- was capable of hearing the statement
- reasonable person would have objected
what is needed for an agent/employees out of court statement to be considered a vicarious statement
the agent must
- acting within scope of employment
- have current relationship when making the statement
what are the exceptions to the hearsay when the declarant is unavailable
statement against interest, dying declaration, statements of family history, former testimony (if testimony was under oath AND party agisnt whom test is offered had a chance to challegne), statements agsint party that intentionally procured witness unavailaiblity
what are the exceptions to hearsay when the declarants availability is immaterial
excited utterances, present sense impressions, present state of mind, statements for medical diagnosis, records of regualrly maintained business, official records,recorded recollection, docs affecting proeprty interest, reputation evidence
what is a present sense impression
a hearsay exception when declarnat availability is immateria
-describes an event or condition while or immediately after it is perceived
what is present state of mind
hearsay exception when declarnat avaaiblity is immateria
-about then-existing state of mind including
-intent
-motive
-plan
NOT memory or belief
choice of law provision for testimonial privilege
when federal question: federal common law
when diversity: state law
federal common law privilege
attorney client spousal confidential martial comms psycho/social worker - client clergy/pentitetn govt privilege
AC privilege for corps
covers any employee auth to make or directed to make statements
when does AC privilege end
never; perpetual
spousal privilege and con marital comms
spusal: can’t call spouse to testify against other spouse in a criminal trial (must be married at time of trial)
con marital comms: all comms made durign marriage are confidential. anything before or after marriage is not
when do neither marriage privileges work
when joint crime/fraud, legal actions b/w spouse, children and spuse is testifying
what preliminary facts does the judge determine
anyting with competency of evidence (if it is admissible
what preliminayr facts does the jury determine
relevance of evidence
req for an interpreter
needs to be qualified as expert
needs to take oath to translate truthfully
ruling on existence of preliminary fact
judge
MAY be excercised in front of jury
must allow both parties to make case
