Evidence Flashcards
Impeachment
Regular impeachment
By asking questions OR cross-examining a witness based on what they said.
Admissible qs to attack witness’ CREDIBILITY
Balancing test
Def
Is the probative value of evidence outweighed by the prejudicial effect on the person?
Depending on the answer, the evidence will be admissible/not.
Character
Def and admissibility
Def: witnesses testify about P/D doing something bad in the past.
Default: inadmissible b/c too prejudicial, it does not meet the balancing test.
There are civil and criminal exceptions
Character
Civil exceptions
In a civil case, character evidence is admissible if the case is about:
1. defamation (slander/libel),
2. child custody,
3. negligent entrustment,
4. and misrepresentation.
Character
Criminal cases rule
If D opens the door by presenting evidence of party’s honesty/ truthfulness/ peacefulness = opposing party can bring in evidence rebutting such.
If door not open, character evidence is inadmisisble UNLESS exceptions
Character evidence
Criminal cases - exceptions
Prosecution can bring in character evidence to show:
M: Motive
I: Intent
M: Mistake
I: ID
C: Common scheme/plan (aka MO).
MIMIC
Habit
Type of character evidence
Can show that someone has a “HABIT” if they ALWAYS do it
Requires a regular response to a particular circumstance
Must be everyday, not ocassionally.
Impeachment
Through prior bad acts
Prior bad acts default = inadmissible
- Unless: W is being asked if they have lied/cheated in the past – admissible to show witness’ dishonesty.
-Note: you CANNOT prove what W said is true/false through extrinsic evidence
If P/D decides to go on the stand, P/D = witness, and these rules appy!
NOTE: once you confront witness with such bad acts, and W leaves the stand, you cannot ask another witness to prove/disprove what W said b/c prior bad acts cannot be proven by extrinsic evidence
Using Witness 2 to contradict what other Witness 1 SAID
Impeachment
Don’t confuse prohibition of extrinsic evidence to show whether witness is lying about a PRIOR BAD ACT to using extrinsic evidence to prove what someone SAID was a lie!!
- Using a witness to show what someone said is a lie is – IMPEACHEMENT - admissible.
Impeachment
Through prior crimes
General felony evidence = not admissible
- UNLESS: w/in 10y and passes balancing test
BUT crimes about lack of truthfulness/dishonesty (i.e. fraud) = admissible.
Bias
Impeachment
Attorney can ask questions to Witness to SHOW that they are BIASED or has an interest in the outcome of the case AND thus has a motive to lie!!!
Bias impeaches directly BUT also attacks someone’s credibility!
Hearsay
Default
It is presumed that witnesses offer statements for the “truth of the matter asserted.” Thus, hearsay = inadmissible.
Unless an exception applies
Hearsay
Exceptions
- Present sense impression
- Excited utterances
- Then existing state of mind
- Business record
- Dying declaration
- Statements against interest
Present sense impression
Hearsay exception
You are telling what you’re seeing, as you’re seeing it!
If telling what you saw even 1+ min after = hearsay b/c not present time
Excited utterances
Hearsay exception
You’re telling what you saw, still under the spell/effect of what you saw.
Key words: “yelled” “shrieked” anything wfinishing with an exclamation!
i.e. you saw someone get shoted on your walk back home, you got home and still in shock you tell you partner about it.
Then existing state of mind
Hearsay exception
Statement/witness showing emotional reaction to an activity
OR
Anything about the future (activities, travel, work, etc.) = will always show intent and be admissible
Emotions: love, hate, anger, rage, etc.
Business records
Hearsay exception
Records kept in the “regular course of business” = done all the time no matter what (i.e. reporting plant conditions daily, ER intake forms, police accident reports)
Business records
Grossman’s bar prep tip
Entries into a document (statements in a business record) = inadmissible!
The document may come in as an exception, but statements are hearsay
Dying declaration
Hearsay exception
- Statements made while believing impending death
- Statements MUST be about why person thinks they’re dying.
- Exception applies only to: (a) homicide (4 muder; 2 manslaughter types) OR (b) civil cases.
- Declarant MUST be unavailable to testify.
Unavalibility
Defined
Facts MUST tell you the declarant is unavailable by i.e. death; medically unable; took 5th Am; declarant is nowhere to be found.
Statements againts interest
Hearsay exception
Def:
- Party to the case OR non-party to the case make a statement that CAN make them look liable/guilty.
Limitation:
- declarant (party/non-party making statement) MUST be unavailable
Admissions
Non-hearsay
Def:
- A PARTY to the case makes a statement that can make them look liable or guilty.
Application:
- Only admissions from parties to the case are admitted.
Limitation:
- None, unavailability is NOT required.
Admissions v. statements against interest
Grossman’s bar prep tip
If facts tell you that the declarant made a statement against themselves & facts don’t tell you declarant is unavailable
Default = admission
Facts MUST tell you declarant is unavailable
Admissions
Types
- Adoptive admissions (silence when a reasonable party would object)
NOTE: silence alone is not an admission! Must be some indication that a reasonable person would object to whatever they’re being asked.
- Vicarious admission (when an employee makes a statement in the course of their job)
