Evidence Flashcards
Non-Hearsay
Party-Opponent = party (agent/employee/co-conspirator) + statement of guilt/liability *party’s fault
Declarant/witness = subject to cross, prior statement (inconsistent, refute, or ID)
Impeachment & Substantive
Used to impeach witness’s credibility
(Intrinsic - examine W or Extrinsic - opp. to explain or deny)
+ prove truth if hearsay exception
Liability Insurance
Admissible = impeach (self-interest, bias, or motive) or prove control
Communications v. Testifying
Communications = comm. during marriage, protection during & after, civil/criminal, bilateral right
Testifying = comm. before & during marriage, protection during, criminal, unilateral right
Hearsay w/in Hearsay
Hearsay not within any exception
Hearsay Exception - Unavailable
Dying declaration (imminent belief of dying 💀, statement is about why they are dying ☠️, only in homicide cases)
SAI (nonparty + liable/guilty statement)
SA Party who Caused Declarant’s Unavailability - forfeits + confront
Former Testimony (current case or similar parties/issue & opp. To examine)
Impeachment - W’s credibility/character
Direct = opinion & reputation
Cross = specific acts
(1) said/saw (PIS, bias, sensory), (2) W’s prior conviction (felony w/in 10 yrs or criminfalsey), or (3) Prior bad act (HONESTY + INTRINSICALLY)
BER
(1) prove content at issue
(2) prove facts learned from doc ➡️ must produce
❌ not produce if personal knowledge or collateral/minor issue
MIMIC - crimes or bad acts
Motive, intent, mistake, identity, or common scheme/plan
Presumption
Jury May find if D presented E
Must find if D presented no E
Conclusive if no contrary evidence
Character evidence civil
Defamation and Defamation Defenses: If B said A is a thief, and A sues for defamation, B can defeat the defamation claim’s falsity requirement by showing that A actually is a thief.
Negligent Hiring: If Uber hires a driver that has a long track record of traffic violations, helps prove up their negligence in hiring that driver.
Negligent Entrustment: If you loan a car to someone with a reputation/track record of driving violations, that proves up your negligence in letting them borrow it.
Child Custody (Fitness as a Parent): Pretty obvious, but a parent’s reputation and/or specific acts of say… abuse/negligence are an element to proving a fitness as a parent.
Self Defense: to show that the V had a reasonable belief of imminent harm b/c of D’s past conduct/reputation/specific acts of/for violence.
Entrapment: entrapment is a defense to a crime if, among other elements, the D had no predisposition to commit the crime. This showing allows P to rebut by showing that D is predisposed to commit that crime by using reputation/specific act character evidence of past crimes perhaps.
Hearsay
Out of court statement, offer to prove truth, matter asserted
No H - Offer, acceptance, liable, slander, notice or motive
PSI - talking while observing/witnessing (no emotion)
Excited Utterance - while I am excited, say yelled, (!)
Then-Existing - my intent (i.e., travel plans), emotions (i.e., love, fear), physically (i.e., pain)
Business Record - ord. course of business, common practice, DUTY
Recorded Recollection - created doc/rec. When fresh, cannot RECALL, read into evidence
Public Record - rec. of off./ag., DUTY to report, obs.
Absence of public/business records
Medical Diagnosis - past/present syms., related to treatment, how not who caused
Learned Treatise - expert relied on said treatise
Family - birth, death, etc.
Ancient Doc - +20 yrs., authenticated
Catch All - material, trustworthy, in interest of justice
Waiver of privilege
Not waive if:
Inadvertent, reasonable steps to prevent, and promptly rectified
(I.e., 2/25)
Or LOOSE RIGHT UNLESS PLAIN ERROR
Expert v Lay
Expert admitted (lay foundation for topic X by preponderance), use outside material, form opinions/conclusions (except requisite mental state for crime)
Lay witness - not scientific or technical
Authentication
Items purports/are what they claim to be via testimony
