Evidence Flashcards
Original Documents
An original document or writing includes either the original itself or a duplicate.
There are three substitutes for an original:
1. A duplicate;
2. A certified copy of a public record; or
3. Summaries of voluminous records.
Authenticating Voice Evidence
Voice evidence may be authenticated via opinion identifying a person’s voice — whether heard firsthand or through mechanical or electronic transmission or recording — based on hearing the voice at any time under circumstances that connect it with the alleged speaker.
Must have had firsthand knowledge that the party speaking was the party on the recording, and vice versa.
Double Hearsay
Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statement conforms with an exception to the hearsay rule.
Rule of Completeness
Where a party introduces part of a writing or recording, the adverse party may immediately introduce any other writing or part of the writing, which, in fairness, ought to be considered in conjunction with it.
Leading Questions
Not generally permitted during direct examination.
Sometimes permitted on direct when questioning a child, a mentally impaired witness, an expert witness, a hostile witness, or to obtain preliminary information like a name or address.
Leading questions are usually permitted upon cross-examination.
Testimony About Jury Deliberations
Generally, jurors may not testify about matters occurring during deliberations.
Exceptions—
- Where extraneous prejudicial information was brought to the jury’s attention,
- When an outside influence was improperly brought into jury deliberations, or
- If there was a mistake in entering the verdict on the verdict form.
Hearings Outside of the Presence of the Jury
The court must conduct any hearing on a preliminary question outside of the presence of the jury if: (JAW)
(1) Justice requires;
(2) Hearing involves the Admissibility of a confession; or
(3) Witness-defendant in a criminal case requests.
Unavailability of a Witness
Events that constitute unavailability as a witness include:
(PRIM)
- Privilege,
- Refusal,
- Incapacity/death, or
- Lack of Memory.
And/or inability to be reached by a subpoena.
Self-Authenticating Documents
Extrinsic evidence of authenticity as a condition precedent to admissibility is NOT required with respect to
- Certified documents,
- Official publications,
- Newspapers and periodicals,
- Trade inscriptions,
- Acknowledged documents, and
- Commercial paper.
Learned Treaties Hearsay Exception
If the court finds a publication to be a reliable authority, then “statements” from it may be read into evidence, but the publication may not be received as an exhibit.
The jury is not allowed to bring learned treatises into the jury room. There is a concern that if juries were allowed unrestricted access to the whole publication, they might rely on parts of the publication that are not germane to the case.
Intent of the rule is that juries need to be guided through the pertinent parts of the publication by the testifying experts.
Character Evidence Definition
Character evidence refers to a person’s general propensity or disposition for honesty, peacefulness, or violence.
Subsequent Remedial Measures
Evidence of remedial measures taken subsequent to any injury or harm are not admissible to prove negligence or culpable conduct.
However, may be admitted to prove ownership, control, or feasibility of precautionary measures.
Habit Evidence
Evidence of a person’s habit or an organization’s routine practice is admissible to show that on a particular occasion, the person or organization acted in accordance with that habit or routine.
Habit: Any action done automatically and routinely without forethought.
Beyond a Reasonable Doubt Standard
The “beyond a reasonable doubt” standard of proof applies to criminal trials as to each element of the crime charged.
Any doubt that exists wouldn’t affect a reasonable person’s belief that the fact is true.
Preponderance of the Evidence Standard
The “preponderance of the evidence” standard of proof applies to civil cases. A preponderance of the evidence is “just enough evidence to tip the balance in favor of the fact.
Judicial Notice
A substitute for proof where the court accepts certain facts as true. Applies to facts that are not subject to dispute that are facts commonly known in the territory and easily verifiable facts by sources whose accuracy cannot be questioned.
In civil cases, the jury must accept the fact as true, but in criminal cases the jury cannot be required to find a fact as true.
Effect of Judicial Notice on a Jury
A civil jury MUST take a judicially noticed fact as true, whereas a criminal jury MAY take a judicially noticed fact as true (cannot be required).
Burden of Production in a Civil Case
The plaintiff has the burden of production in a civil case to present evidence.
Burden of Production in a Criminal Case
Prosecution has the burden of proof of establishing all elements of the crime charged.
Burden of Persuasion
The degree to which the evidence must be proven. Either by a preponderance of the evidence, clear and convincing, or beyond a reasonable doubt.
Test for Relevancy of Evidence
Evidence is relevant if it (1) has any tendency to make a fact more or less probable than it would be without, and (2) it is a fact of consequence.
Relevant evidence must have some probative value and be helpful to the jury in deciding the case.
Relevant evidence is generally admissible.
Rule 403 Balancing Test
Relevant evidence may be excluded if it’s probative value is substantially outweighed by a danger of:
- Unfair prejudice;
- Confusing the issues;
- Misleading the jury;
- Undue delay;
- Wasting time; or
- Cumulative evidence.
Sets a generally low bar for admissibility. To be excluded, the evidence must be substantially more prejudicial than probative.
The Rule 403 balancing test favors admission.
Types of Character Evidence
Reputation, opinion, or specific acts.
Character Evidence as an Element/At Issue
Character evidence will be admissible if it is necessary to prove an element of the claim/charge. (D’NICE)
- Defamation.
- Negligent entrustment/hiring/supervision.
- Immigration.
- Child custody.
- Entrapment.
Exceptions to the Ban on Character Evidence
- A criminal ∆ can offer evidence of their own pertinent character traits. Opens the door to the prosecution presenting character evidence to rebut.
- A criminal ∆ can offer pertinent character evidence of the victim in a homicide case, when bringing a claim of self-defense. Opens the door to the prosecution presenting character evidence to rebut and also can present evidence of the ∆’s same trait.
- In a homicide case, the prosecution can show evidence of a victim’s trait for peacefulness.
- Can offer character evidence of past sexual encounters between the two parties to show consent.
- Can offer character evidence of a victim’s past sexual encounters to show that semen/injuries came from a different sexual encounter than the ∆’s
Conformity Character Evidence
The general rule is that evidence of a person’s propensity to conform with a particular character trait is inadmissible.
5 exceptions:
- When a criminal ∆ offers the evidence first.
- When the prosecution can offer evidence of the victim’s trait of peacefulness in a homicide case.
- Rape Shield laws.
- Sexual predators.
Admissibility of Pleas
Evidence of pleas are inadmissible, as long as the statement was actually made to a prosecutor (not a police officer or any other lawyer).
Marital Communication Privilege vs. Spousal Immunity
Marital Communications: Protects confidential communications between parties DURING the marriage. Parties do not have to be married at trial, but the communications sought to be privileged must have been made during the marriage. Exceptions — suits between spouses, domestic abuse, or joint participation in a crime.
Spousal Immunity: Protects everything before or during the marriage. Parties must be married at the time of trial. The testifying witness holds the privilege; one spouse cannot prevent the other spouse from testifying. ONLY APPLIES IN CRIMINAL CASES.
