Evidence Flashcards
best evidence rule
the original writing must be produced when proving the material terms of that writing. Secondary evidence of the writing such as oral testimony regarding the writing’s contents is permitted only after it as been shown that the original is unavailable for some reason other than by serious misconduct of the proponent.
before a writing can be received in evidence, it must be
authenticated by proof showing that the writing is what the proponent claims it is. All that is necessary is proof sufficient to support a jury finding of genuine. The authenticity of a document is a preliminary fact to be decided by the jury.
Lay opinoin testimony is admissible when:
- it is rationally based on the perception of the witness
- it is helpful to a cleat understanding of his testimony or to the determination of a fact in issue; and
- it is not based on scientific techical or other specialized knowledge.
- A lay witness may tesify about the general appearance or condition of a person.
Confrontation clause
an accused has the right to be confronted by the witnesses against him. A hearsay statement will not be admitted-even if it falls within a hearsay exception-when:
(i) the statement is offered against the accused in a criminal case;
(ii) the declarant is unavailable;
(iii) the statement was testimonial in nature; and
(iv) the accused had no opportunity to cross-examine the declarant’s “testimonial” statement prior to trial.
The Supreme Court has established that if the primary purpose of police interrogation is to enable the police to help in an ongoing emergency, statements made in the course of the interrogation are nontestimonial. When the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution, statements are testimonial.
transactional immunity
prevents a witness from being prosecuted for any crime referred to in the testimony.
presumptions can be rebutted by
most presumptions can be rebutted by evidence that contradicts the presumption. If one party lays a proper foundation for the presumption and the other party does not introduce any contrary evidence, the judge will instruct the jury on the presumption. If the other party produces even a scintilla of credible evidence contradicting the presumption, the judge will not instruct the jury on the presumption.
non-testimonial vs testimonial statements
Testimonial:
Examples of out-of-court “testimonial statements” include ones made to law enforcement officers, other government employees or officials, and statements made in courtrooms or courtroom-like settings or other analogous situations. This includes prior testimony in a preliminary hearing, before a grand jury, at a prior trial and also police interrogation situations. Affidavits and depositions are also viewed as being testimonial statements. Basically, the common thread among statements made in such environments is the more “official” or formal nature of such communications.
Non-testimonial:
In contrast, hearsay statements to family, friends, co-workers, and neighbors, which are typically informal and conversational in nature, are not considered testimonial. Calls to 911 and similar statements to law enforcement which, when viewed objectively, have as their primary purpose to enable law enforcement to respond to an ongoing emergency are not testimonial in nature.
In a criminal case, the Sixth Amendment requires the opportunity to cross-examine testimonial hearsay statements.
exclusion of a witness from court room
at the request of either party or in its own discretion, the judge shall order a witness excluded from the court room so that the excluded witness cannot hear the testimony of other witnesses.
The ability to exclude witnesses, however, does not permit the exclusion of a party or witnesses shown by a party to be essential to that party’s presentation of its case.
