Evidence Flashcards
When may a witness be impeached by a prior inconsistent statement?
Priority: Medium
Under the Federal Rules of Evidence (FRE), a litigant is generally allowed to impeach a witness’s credibility by introducing a prior inconsistent statement, as long as the inconsistency involves an issue relevant to the facts of the case.
A witness’s testimony as to lack of memory can be considered an inconsistency for which a prior inconsistent statement may be introduced.
When may extrinsic evidence of a prior inconsistent statement be admitted?
Priority: Medium
Extrinsic evidence of a prior inconsistent statement used to impeach a witness’s credibility may be admitted only if the witness is given an opportunity to explain or deny the statement and the opposing party is given the opportunity to examine the witness about it.
What is hearsay, and what statements will qualify?
Priority: High
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.
A hearsay statement may be an oral or written assertion and can be nonverbal conduct intended as an assertion.
Crying is not considered an assertion and will not be hearsay.
When is hearsay admissible?
Priority: High
Hearsay evidence is generally inadmissible unless it falls within an exception or exclusion, or is deemed “non-hearsay.”
When is a prior out-of-court identification considered non-hearsay?
Priority: High
Under the FRE, a previous out-of-court IDENTIFICATION of a person after perceiving that person is deemed non-hearsay if THE WITNESS IS TESTIFYING AT THE CURRENT TRIAL and is SUBJECT TO CROSS-EXAMINATION
When is character evidence admissible?
Priority: High
Generally, evidence of a person’s character is not admissible to show propensity.
In a civil case, evidence of a person’s character trait is generally inadmissible to prove that the person acted in accordance with that trait on a particular occassion.
Character evidence is generally admissible for non-propensity purposes or when character is an issue in the case.
When may a defendant introduce evidence of his character?
Priority: High
In a criminal case, the defendant is permitted to introduce evidence of their good character as being inconsistent with the type of crime charged.
When allowed, how may character evidence be proven?
Priority: High
When admissible, character evidence may be proven by opinion testimony or testimony of reputation in the community.
The community includes people the defendant engages with on a regular basis.
When can specific acts be used as character evidence?
Priority: High
Specific acts may be used only on cross-examination or if character is an essential element of the case.
When is double hearsay admissible?
Priority: Medium
Hearsay within hearsay (double hearsay) is admissible as long as each level of hearsay falls within a hearsay exception.
What is the business records exception to hearsay, and what must a witness establish to meet the exception?
Priority: High
A record or other writing of any act or event made in the course of regularly conducted business is admissible under the business-records exception to the hearsay rule.
The witness must establish that the record was made (1) at or near the time of the event, (2) by a person with knowledge of the event, and (3) as part of a regular practice of the business.
A business record is excepted from the hearsay rule if the record was (1) kept in the course of a regularly conducted activity; (2) made as a regular practice for that activity; and (3) made at or near the time of the act or event by someone with knowledge.
When are statements made for medical diagnosis or treatment admissible?
Priority: High
A statement that is made for the purpose of describing medical history, past or present symptoms, pain, or other sensation is admissible if it is made to a physician or other medical personnel for the purpose of medical diagnosis or treatment.
A statement of the cause or source of the condition is admissible if it is reasonably pertinent to diagnosis or treatment.
What is the confidential marital communications privilege?
Priority: Medium
The confidential marital communications privilege protects communications made during the course of a valid marriage that were intended to be confidential. Either spouse may assert the privilege.
This privilege protects communications made during the marriage, even if the marriage no longer exists or one of the parties to the marraige is dead.
When does the confidential marital communication privilege end?
Priority: Medium
If a spouse has revealed the content of a confidential communication to a third party, confidentiality no longer exists and the privilege should not apply.
When may a hearsay declarant be impeached?
Priority: Medium
Once a hearsay statement is admitted into evidence, the hearsay declarant’s credibility may be attacked by any evidence that would be admissible if the declarant had testified as a witness.
What may be admitted to impeach a hearsay declarant?
Priority: Medium
Any inconsistent statement, even a hearsay statement, made by the declarant may be admitted to impeach the declarant’s credibility. It does not matter when the statement occurred or whether the declarant had an opportunity to explain or deny it.
What is the confidential marital communications privilege?
Priority: Medium
The confidential marital communications privilege protects communications made during the course of a valid marriage that were intended to be confidential.
This privilege protects communications made during the marriage, even if the marriage no longer exists or one of the parties to the marraige is dead.
What is the confidential marital communications privilege?
Priority: Medium
The confidential marital communications privilege protects communications made during the course of a valid marriage that were intended to be confidential.
This privilege protects communications made during the marriage, even if the marriage no longer exists or one of the parties to the marraige is dead.
What is the confidential marital communications privilege?
Priority: Medium
The confidential marital communications privilege protects communications made during the course of a valid marriage that were intended to be confidential.
This privilege protects communications made during the marriage, even if the marriage no longer exists or one of the parties to the marraige is dead.
What is the confidential marital communications privilege?
Priority: Medium
The confidential marital communications privilege protects communications made during the course of a valid marriage that were intended to be confidential.
This privilege protects communications made during the marriage, even if the marriage no longer exists or one of the parties to the marraige is dead.
Generally, when is evidence admissible?
Priority: High
As a rule, only relevant evidence is admissible.
All relevant evidence is admissible unless excluded by a specific rule, law, or constitutional provision.
When is evidence relevant?
Priority: High
Evidence is relevant if it has any tendency to make a material fact more or less probable.
Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence and is of consequence in determining the action.
When is a party statement not hearsay?
Priority: High
A statement made by a party to the current litigation is not hearsay if it is offered by an opposing party.
This includes any statement made by the party, their agent, co-conspirator, or person authorized to make statements on their behalf, or a statement adopted by the party.
What is the present intent exception to hearsay?
Priority: High
A statement of present intent, motive, or plan can be admissible as a hearsay exception to prove conduct in conformity with that state of mind.
When may a prosecutor introduce character evidence for propensity purposes?
Priority: High
In a criminal case, the prosecution is not permitted to introduce evidence of a defendant’s bad character to prove that the defendant has a propensity to commit crimes and therefore is likely to have committed the crime in question.
