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Evidence Flashcards

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1
Q

RELEVANCE

A

DEF: It has any tendency to make a fact of consequence to the outcome of the matter more or less probably. MUST BE
1) Material (of consequence)
2) Probative

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2
Q

EXCLUDING RELEVANT EVIDENCE

A

May be excluded if the probative value is substantial outweighed by 1 or more of the following:
1) Misleading the jury
2) Danger of unfair prejudice
2) Confusion of issues
3) undue delay
4) cumulative
6) Waste of time

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3
Q

PRIOR FALSE CLAIMS - SAME BODILY INJURY

A

Generally Inadmissible

ADMISSIBLE for
1) show previous similar false claims
2) causation of injury

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4
Q

HABIT EVIDENCE

A

DEF: Regular response to a specific set of circumstances

ADMIT as CIRCUMSTANTIAL evidence of conformity

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5
Q

LIABILITY INSURANCE

A

INADMISSIBLE FOR:
1) negligence

ADMIT FOR:
1) ownership or control
2) Impeach
3) part of admission of liability

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6
Q

SUBSEQUENT REMEDIAL MEASURES

A

INADMISSIBLE FOR:
1) negligence, culpable conduct, defect, need for warning

ADMIT FOR:
1) ownership, control
2) rebut claim that remedy was not feasible
3) prove opposing party DESTROYED evidence

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7
Q

CIVIL SETTLEMENTS/NEGOTIATIONS

A

INADMISSIBLE for:
1) proving/disprove amount
2) impeachment by prior inconsistent statement

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8
Q

CIVIL DISPUTE WITH GOVERNMENT

A

ADMIT when offered in criminal case

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9
Q

PAYMENTS/OFFERS TO PAY MEDICAL EXPENSES

A

INADMISSIBLE FOR:
1) Liability

ADMIT - admissions of fact accompanying statements

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10
Q

CHARACTER EVIDENCE

A

DEF: A person’s general propensity or disposition

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11
Q

CHARACTER EVIDENCE AS SUBSTANTIVE EVIDENCE

A

1) Character trait directly IN ISSUE
2) Circumstantial evidence of how they PROBABLY ACTED
3) Impeachment by bad character for truth

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12
Q

METHODS OF PROVING CHARACTER

A

1) Specific Acts
2) Opinion T
3) Reputation T

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13
Q

DEFENSE: CHARACTER EVIDENCE

A

Character W for defense may testify to D’s good REPUTATION for a PERTINENT trait and may give personal OPINION re: that trait

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14
Q

PROSECUTION: CHARACTER EVIDENCE

A

1) DEF must OPEN DOOR
2) Then P can cross D’s W re specific acts (did you know?) - show lack of knowledge
3) P can call OWN CHARACTER W’S FOR R/O

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15
Q

VICTIM’S CHARACTER - CRIM CASES

A

When: Usually in self defense cases re: V as first aggressor

HOW: R/O testimony of bad character for relevant trait

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16
Q

VICTIM’S CHARACTER - PROSECUTION REBUTTAL

A

When: Self defense cases re: V as first aggressor
How:
1) After D opens door
2) R/O evidence of D’s bad character for same trait OR
3) R/O evidence of V’s good character for same trait

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17
Q

CIVIL CASES: CHARACTER

A

Generally Inadmissible

Admit when: Directly in issue

Cases:
1) Defamation
2) Negligent hiring/entrustment
3) child custody cases

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18
Q

OTHER MISCONDUCT: NON-CHARACTER PURPOSES

A

MIMIC
1) Motive
2) Intent
3) Mistake (lack of)
4) Identity
5) common plan or scheme

Admissibility: sufficient evidence to support jury finding

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19
Q

AUTHENTICATION OF EVIDENCE

A

BE AWARE OF
1) authentication
2) Best evidence rule
3) hearsay

Proof - must be SUFFICIENT TO SUPPORT A JURY FINDING OF GENUINENESS

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20
Q

METHODS OF AUTH

A

1) opponent admission
2) Eyewitness T
3) Handwriting verification (layperson w/knowledge OR expert)

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21
Q

ADMISSIBILITY: PHOTOS AND VIDEOS

A

1) Identified by a W and
2) verified by W as FAIR AND ACCURATE REPRESENTATION of facts

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22
Q

AUTHENTICATION: ORAL STATEMENTS

A

Voice ID: testified to by opinion of anyone who heard the voice at ANY TIME

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23
Q

BEST EVIDENCE RULE (ORIGINAL DOC RULE)

A

This means that original documents are favored over copies.

Used to prove content of writing, recording or photo

ORIGINAL must be produced if terms are MATERIAL

SATISFACTORY EXCUSE needed for producing secondary evidence

BAR TIP: USUALLY WRONG ANSWER

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24
Q

BEST EVIDENCE RULE: APPLICATION

A

1) Writing is a LEGALLY OPERATIVE OR DISPOSITIVE INSTRUMENT or
2) KNOWLEDGE of W results from having read it

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25
Q

COMPETENCY OF WITNESSES

A

PRESUMPTION that W’s are competent

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26
Q

CHILDREN AS W’S

A

Case by case determination of judge

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27
Q

INSANE W’s

A

Can testify if they:
1) understand obligations to speak truthfully
2) Have capacity to testify ACCURATELY

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28
Q

JURORS AS W’S

A

MAY TESTIFY TO:
1)if extraneous prejudicial information was given to jury
2) if OUTSIDE INFLUENCE bore on jury
3) MISTAKE on verdict form
4) clear statements of juror about RACE or ANIMUS to convict

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29
Q

DEAD MAN STATUTES

A

CIVIL CASES - interest person is:
1) incompetent to testify to communication with deceased
2) When offered against representatives or successors in interest

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30
Q

PRESENT RECOLLECTION REVIVED

A

W’s can use writings or objects to refresh present recollection.

NOT in evidence

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31
Q

PRR: ADVERSE PARTY OPTIONS

A

When W uses writing to refresh memory ON STAND, opp party can:
1) have writing produced at trial
2) Cross examine about writing AND
3) introduce related portions of the writing

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32
Q

PAST RECOLLECTION RECORDED

A

W has insufficient memory, the record can be READ INTO EVIDENCE if PROPER FOUNDATION LAID with proof that:
1) W has insufficient memory,
2) W had PERSONAL KNOWLEDGE of the facts in the record
3) Record made by W or adopted AND
4) W vouches for accuracy

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33
Q

PAST RR ADMISSION IN EVIDENCE

A

Can only be admitted IN EVIDENCE if offered by the ADVERSE PARTY

34
Q

LAY WITNESS OPINION TESTIMONY

A

Admissible when:
1) rationally based on W’s perceptions
2) HELPFUL to clear understanding of W’s T AND
3) not based on specialized knowledge

35
Q

EXPERT OPINION TESTIMONY REQ’S

A

1) Specialized knowledge req’d
2) based on sufficient facts or data
3) reliable principles/methods AND
4) reliable application of those principles to facts

36
Q

IMPEACHMENT

A

Offered to discredit a Witness

NOT as SUBSTANTIVE EVIDENCE when only for impeachment purposes

37
Q

IMPEACHMENT METHODS

A

1) Cross examination
2) Extrinsic evidence

38
Q

IMPEACHMENT BY PRIOR INCONSISTENT STATEMENT

A

Can cross-examine OR use EXTRINSIC evidence

PROPER FOUNDATION for EE needed

39
Q

PRIOR INCONSISTENT STATEMENTS: SUBSTANTIVE EVIDENCE

A

Admissible as such if the prior statement was made UNDER OATH at a PRIOR proceeding = non-hearsay

40
Q

PRIOR INCONSISTENT STATEMENT: EE FOUNDATION

A

1) Witness is given OPPORTUNITY to explain or deny the statement AND
2) ADVERSE party had opportunity to EXAMINE them

DOESN’T APPLY - Opposing party statements

41
Q

BIAS EVIDENCE

A

Can show that a witness has a motive to lie

42
Q

BIAS: EE FOUNDATION

A

Unclear

Majority Rule: W must first be asked about facts showing bias or interest on cross exam

43
Q

OPINION/REPUTATION - UNTRUTHFULNESS

A

You can call a character W to testify about another W’s bad reputation/bad opinion for the truth

44
Q

IMPEACHMENT: CRIMES

A

1) ANY crime involving DISHONESTY or FALSE STATEMENT
2) Felony - balancing test
3) NONE - over 10 years old

45
Q

IMPEACHMENT: BAD ACTS FOR UNTRUTHFULNESS

A

At judge’s discretion - W can be cross examined on misconduct for untruthfulness

BUT NOT EE

46
Q

IMPEACHMENT: HEARSAY DECLARANT

A

Credibility of a hearsay declarant can be attached by evidence that would be admitted if the declarant HAD TESTIFIED at trial.

Any impeachment methods OK

NO OPPORTUNITY needed for declarant to explain

47
Q

REHAB AFTER IMPEACHMENT

A

1) Explanation on re-direct
2) Good character for truth - R/O by other W’s
3) Prior consistent statement

48
Q

HEARSAY

A

Def: An out of court statement offered to PROVE THE TRUTH OF THE MATTER ASSERTED

49
Q

DOUBLE HEARSAY

A

Hearsay incorporating other hearsay

Ex. After the accident, JOHN TOLD ME THAT MARY SAID…

50
Q

ADMISSIBLE FOR NON-TRUTH PURPOSES

A

1) Verbal acts or legally operative facts
2) Statements offered to show EFFECT ON LISTENER

51
Q

HEARSAY EXCEPTION: PRIOR ID

A

1) W is available
2) statement is one of prior ID
3) that the W perceived at an earlier time

52
Q

HEARSAY EXCEPTION: PRIOR INCONSISTENT STATEMENT

A

1) W is available
2) prior statement is inconsistent with current T
3) AND was made UNDER OATH
4) at a DIFFERENT PROCEEDING

53
Q

HEARSAY EXCEPTION: PRIOR CONSISTENT STATEMENT

A

Consistent if:
1) offered to rebut charge of lying/exaggerating
2) offered to REHAB the W when impeached on SOME OTHER GROUNDS

54
Q

OPPOSING PARTY STATEMENTS

A

DEF: Statements made by or attributable to a party and OFFERED AGAINST THEM - NOT HEARSAY

55
Q

ADOPTION BY SILENCE

A

1) Party is accused
2) party heard & understood the statement
3) Capable of denying it
4) A REASONABLE person would have DENIED it

56
Q

VICARIOUS STATEMENTS: AUTHORIZED SPOKESPERSON

A

statements made by an authorized spokesperson can be admitted against the party to a case.

57
Q

VICARIOUS STATEMENTS: AGENTS & EMPLOYEES

A

ADMISSIBLE if it:
1) concerned matter WITHIN THE SCOPE of agency/employment AND
2) made DURING THE EXISTENCE of the relationship

DOESN’T have to happen WHILE ON THE JOB

58
Q

WHEN IS A DECLARANT UNAVAILABLE

A

1) death, physical, mental illness
2) Exempt - privilege
3) Refusal to testify
4) Don’t remember subject matter
5) ABSENT and unable to be procured

59
Q

HEARSAY EXCEPTION: FORMER TESTIMONY

A

1) Declarant is unavailable
2) Testimony given UNDER OATH
3) Party against whom testimony is offered had OPPORTUNITY and SIMILAR MOTIVE to exam W

60
Q

HEARSAY EXCEPTION: STATEMENT AGAINST INTEREST

A

1) Declarant is unavailable
2) Against pecuniary, proprietary or penal interest WHEN MADE

61
Q

HEARSAY EXCEPTION: DYING DECLARATION

A

1) Homicide and ALL civil cases
2) Declarant believed their death was imminent AND
3) statement about CAUSE or CIRCUMSTANCES of believed impending death

62
Q

HEARSAY EXCEPTION: EXCITED UTTERANCE

A

1) Declarant availability immaterial
2) relating to startling event
3) made while UNDER STRESS of excitement

63
Q

HEARSAY EXCEPTION: PRESENT STATE OF MIND

A

Statements of declarant’s then-existing state of mind are admissible:
1) motive, intent, plan
2) sensory conditions,
3) physical conditions
4) emotion conditions

64
Q

HEARSAY EXCEPTION: STATEMENTS FOR MEDICAL DIAGNOSIS/TREATMENT

A

Admissible for:
1) med history,
2) past or present symptoms
3) GENERAL CAUSE of injury

65
Q

HEARSAY EXCEPTION: REGULAR BUSINESS RECORDS

A

Writings made as a memo of an act, event, condition, opinion or diagnosis

ELEMENTS:
1) Business
2) Made in regular course of buz
3) regular keeping of such records
4) made at or near time of event
5) entrant is personally knowledgeable

66
Q

HEARSAY EXCLUDED: CONFRONTATION CLAUSE

A

Inadmissible where:
1) statement offered against accused criminal
2) Declarant UNAVAILABLE
3) statement was “testimonial” (sworn + to law enforcement)
4) Accused could NOT CROSS EXAMINE

67
Q

PRIVILEGE

A

1) Fed substantive law cases - apply fed common law
2) Fed diversity cases - state law

68
Q

WHO ASSERTS PRIVILEGE?

A

Can be asserted ONLY BY THE HOLDER

69
Q

ATTORNEY-CLIENT PRIVILEGE

A

Applies to:
1) confidential comms
2) between attorney-client
3) during professional consultation
4) Unless WAIVED

HOLDER: CLIENT

70
Q

ATTORNEY-CLIENT PRIVILEGE: EXCEPTION

A

No privilege when:
1) services sought to aid in PLANNING OR COMMISSION of a CRIME or FRAUD
2) where LEGAL SERVICES are at ISSUE

71
Q

PHYSICIAN-PATIENT PRIVILEGE (ONLY STATES)

A

1) Professional relationship existed
2) info for purpose of diagnosis/treatment
3) necessary for such purpose

72
Q

PHYSICIAN-PATIENT PRIVILEGE

A

1) Physical condition IN ISSUE (PI cases)
2) patient sought aid in wrongdoing
3) dispute btw parties
4) patient AGREED to WAIVE
5) fed cases on fed law

73
Q

SPOUSAL IMMUNITY (CRIM CASES)

A

When invoked - spouse of crim defendant cannot be called

1) must be a valid marriage AT THE TIME OF TRIAL
2) lasts ONLY DURING MARRIAGE

HOLDER: Witness spouse

74
Q

CONFIDENTIAL MARRIAGE COMMS: PRIVILEGE

A

Applies: civil or criminal cases

Either spouse can refuse disclosure

MARITAL RELATIONSHIP EXISTED WHEN THE COMMUNICATION IS MADE

75
Q

BURDEN OF PRODUCTION

A

Party of pleading has burden to make PRIMA FACIE CASE

76
Q

BURDEN OF PROOF

A

Civil cases: generally PREPONDERANCE OF THE EVIDENCE

Crim: BEYOND REASONABLE DOUBT

77
Q

PRELIMINARY QUESTIONS FOR JURY

A

1) Relevance of evidence - BUT judge determines if there is SUFFICIENT PROOF TO SUPPORT JURY FINDING that the fact exists

78
Q

PRELIMINARY QUESTIONS: JUDGE

A

1) Witness competence
2) Privilege
3) Exceptions to hearsay apply

79
Q

JUDICIAL NOTICE (DEFINITION)

A

Recognizing that a fact is true without formally presenting evidence

80
Q

JUDICIAL NOTICE (WHICH FACTS?)

A

1) Generally known
2) Accurately and readily determined

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