Evidence Flashcards
The jury looks at Preliminary facts to determine what?
Whether the offered evidence is relevant to the issues in the case.
Who may authenticate a recording of the voice by giving an opinion as to its identity?
Any person familiar with an alleged speaker’s voice.
Under the Confrontation Clause, an accused has the right to be confronted by the witness against him. A hearsay statement will not be admitted-even if it falls within a hearsay exception when:
1) The statement is offered against the accused in a criminal case;
2) The declarant is unavailable;
3) The statement was testimonial in nature; AND
4) The accused had no opportunity to cross-examine the declarant’s “testimonial” statement prior to trial.
What is the excited utterance hearsay exception?
A declaration made by a declarant during or soon after a startling event is admissible if it relates to the startling occurrence and was made under the stress of excitement produced by the startling event.
What is relevancy for evidence purposes?
Evidence is relevant if it tends to make the existence of any fact of consequence to the action more probable than it would be without the evidence.
Evidence of a person’s habit is admissible as circumstantial evidence that the person acted in accordance with the habit on the occasion at issue in the case. Habit describes a person’s regular response to a specific set of circumstances. What are the 2 defining characteristics of habit:
1) Frequency of conduct; AND
2) Particularity of circumstances
What is the best evidence rule?
To prove the CONTENT of a writing, recording, or a photograph, the original writing must be produced if the terms of the writing are material.
The Best Evidence Rule applies in 2 principal situations:
1) Where the writing is a legally operative or dispositive instrument; OR
2) Where the knowledge of a witness concerning a fact results from having read it in the writing.
Past Recollection Recorded. The record itself may be read into evidence if a proper foundation is laid. The foundation must include proof that:
1) Witness has significant recollection to testify fully and accurately
2) Witness had personal knowledge of the facts in the record when the record was made
3) The record was made by the witness or under their direction, or it was adopted by the witness
4) The record was made when the matter was fresh in the witness’ mind; AND
5) The record vouches for the accuracy of the record.
Note: It is not admitted into evidence as an exhibit UNLESS offered by an adverse party.
What are the hearsay exceptions where the declarant is unavailable?
1) Former Testimony;
2) Statements Against Interest;
3) Dying declarations - Statements under belief of impending death;
4) Statements of Personal or family history;
5) Statements offered against party procuring declarant’s unavailability
What are the hearsay exceptions where a declarant’s availability is immaterial?
Excited Utterances
Present Sense Impressions
Present State of Mind
Statements made for purposes of medical diagnosis or treatment
Business Records
Official/Public Records
Recorded Recollection & Learned Treatises (Only read into evidence, not entered in as exhibit)
Under the Confrontation Clause, a hearsay statement will not be admitted (even if it falls within a hearsay exception) where:
1) The statement is being offered against the accused in a criminal case;
2) The declarant is unavailable
3) The statement was “testimonial” in nature; AND
4) The accused had no opportunity to cross-examine the declarant’s testimonial statement prior to trial.
What are the two distinct spousal privileges?
Testimonial privilege (“spousal immunity”) AND
Privilege for confidential marital communications
What is the spousal immunity?
Essentially, the witness-spouse may not be compelled to testify against the other spouse, but may choose to do so.
The spouses MUST be married at the time of trial.
[ONLY IN CRIMINAL CASES]
What is the Privilege for Confidential Marital Communications?
Either spouse may refuse to disclose the communication or prevent any other person from doing so. The marital relationship must exist WHEN the communication is made.
The communication must be made in reliance upon the intimacy of the marital relationship.
[IN CIVIL OR CRIMINAL CASES]
