Evidence Flashcards
Logical Relevance (401)
Makes a fact in issue more likely than it would be without the evidence.
Legal Relevance (403)
otherwise relevant evidence may be excluded if its probative value is substantially outweighed by its prejudical effect.
Doc Evidence - Completeness rule
If a party introduces part of written evidence, the other party may introduce other portions as needed to complete the evidence.
Handwriting Authentication
can be done by an expert, jury, or lay witness with personal knowledge.
Best Evidence Rule
No describing documents instead of showing them, unless necessary.
Self Authenticating Documents
Government seal, certified copies of public records, trade inscriptions, notarized documents, etc.
Ancient Documents
Evidence that is at least 20 years old is presumed authentic.
Responsive reply
Speaker responds to their name.
Voice ID
Voice can be identified by anyone who has heard the voice.
Summaries of Evidence
allowable for voluminous docs.
Judicial Notice
Court may accept certain facts as true without formal proof if it is generally known in that locality.
Witness Qualification
witness must be competent and personally knowledgeable.
Refreshing Recollection
allowed to help witness by showing them a document.
Recorded Recollection
permits the witness to read notes into evidence under a hearsay exception.
Lay opinion
admissible with respect to common sense impression based on the witness’s perception (cannot be based on scientific, technical, or other specialized knowledge)
Expert Opinion
Opinion that is scientific, technical, or otherwise specialized and will help the fact finder understand the evidence/determine a fact in issue.
Settlement offer exception
Settlement offers/withdrawn guilty pleas are generally inadmissible to show liability.
Medical Offers
Not admissible to prove liability for an injury.
Subsequent Remedial Measures
Not admissible to prove negligence, culpability, defective product or need for warning.
Liability insurance
not admissible to prove negligence, but can be used to show ownership/control.
Past Sexual Conduct of a Victim
inadmissible except where disallowing would violate defendants due process rights.
Character Evidence - Definition
Generalized information about a persons behavior.
Character Evidence - General Rule
Generally inadmissible to show act propensity.
Admissible Character Evidence - Civil Cases
where character is an essential element of a claim/defense, or past conduct in cases involving sex assault or child molestation.
Character Evid. - Criminal Trials Specific Acts
Admissible to show Motive, intent, identity, absence of mistake, or a common plan. NOt to show act propensity.
Character Evid. - Criminal Trial Rep or Opinion
Defendant: permitted to show evidence of their good character if pertinent–> opens the door.
Victim: Defense may introduce rep/opinion evidence where relevant to a defense.
Habit Evidence
A person’s habit or an organizations routine is admissible.
Impeachment
A witness may be impeached by calling their credibility into question.
Impeachment - Prior Inconsistent Statement
You can impeach a witness by showing the witness previously spoke to the opposite of their testimony.
Impeachment - Prior Consistent Statement
A witness who has been impeached may be rehabbed by introduction of a prior consistent statement offered to rebut an express/implied charge that the witness lied.
Impeachment - bias/witness
otherwise improper impeachment can be brought to prove a witnesses bias or interest.
Impeachment - Criminal Conviction
Moral Turpitude Convictions may be brought for impeachment.
Felonies may be brought for impeachment purposes.
Impeachment - Bad Acts
Can be brought on cross if probative of witness’s character for truthfulness.
Impeachment - Sensory Deficiencies
Impeachment based on deficiencies in ability of witness to recall or have seen/heard what they are testifying to is permissible.
Rehabilitation of the witness
(1) give witness chance to clarify
(2) show prior consistent statement
(3) introduce evidence of good character after it has been attacked.
Attorney-Client Privilege
Protects Confidential communication between attorney and client if the comms were for the purposes of securing legal advice.
Marital Communications Privilege
Protects communications between spoused made in confidence and in reliance of sanctity of marriage. Held by both spouses and endures after marriage.
Spousal immunity
Gives spouse the right to refuse to testify in a criminal case against the other spouse.
Physician-Patient Privilege
Not federal, but many states recognize that statements made to a doctor for obtaining medical treatment are protected.
Therapist-Patient Privilege
Applies to confidential communications between a patient and their therapist for the purposes of treatment.
Waiver of privilege
Privilege may be waived by holder if
(1) holder fails to assert in a timely manner
(2) voluntary disclosure
(3) Privilege is contractually waived in advance.
Hearsay Definition
An out of court statement brought for the truth of the matter asserted.
Non-Hearsay Statements
verbal acts or legally operative facts, effect on the listener, declarants state of mind.
Federal Exclusions to hearsay (801)
Prior inconsistent statements under oath, prior consistent statements, prior statement of ID, Admission by party opponent, and vicarious admissions.
Hearsay - Prior ID’s
Declarant must testify and be subject to cross examination.
Hearsay - Party Opponent Silence
Must show that opposing party: 1) understood the statement, 2) had the ability to respond, and 3) a reasonable person would have denied it.
Hearsay - Declarant Unavailable Standards
1) privilege applies
2) declarant refuses despite a court order
3) can’t remember
4) dead or sick
5) unavailable and cannot be found.
Hearsay- Types of Unavailable Statements Allowable
1) Statements against interest
2) Former Testimony
3) Dying Declarations
4) Family or personal history statements
hearsay unavailable - statement against interest
Statement was against declarants proprietary, pecuniary, or penal interest that a reasonable person wouldn’t have said unless true.
Hearsay Unavailable - Former Testimony
Must have been: 1) made under oath, and 2) the party against whom the testimony was offered had an opportunity and similar motive to develop the testimony.
Hearsay Unavailable - Dying Declarations
Requires that: 1) declarant believes he/she are dying, 2) individual believes death is imminent, and 3) statement relates to the circumstances of death.
803 Hearsay exceptions
Present sense impression, excited utterance, then existing state, statements for medical treatment, past recollection recorded, Business records, and learned treatises.
803 - Present Sense impression
statement made while declarant was perceiving the event that describes the event.
803 - Excited utterance
statements related to a startling event while under the stress of event.
803 - then existing state of mind
Statement of intent can be used to prove action in conformity with that intent.
803 - then existing emotional/physical condition
admissible to prove existence of that condition.
803 - Medical Condition
describing a declarant’s medical history, past/present symptoms or cause, if pertinent to treatment or diagnosis.
803 - Past recollection recorded
A witness may read the record to the jury if:
1) record concerns matter which witness once had knowledge about.
2) record prepared when matter was fresh.
3) record accurately reflects witnesses knowledge.
4) witness testifies to insufficient memory of the event.
803 - Business records
Record or writing of an event made in the course of a regularly conducted business activity. Recorded 1) at or near event, 2) by a person with knowledge and duty to report, and 3) party of a regularly conducted activity.
803 - Learned treatises
may be used to impeach expert witnesses or substantive evidence on it is established as reliable.
Confrontation Clause
Criminal Defendants have the right to be confronted by witnesses against them.
