Evidence Flashcards
When and how can defendant offer evidence of their good character?
The defendant can initiate reputation or opinion evidence of their good character for a PERTINENT trait. Can offer evidence of peacefulness when charged with violent crime, but not of truthfulness.
What is judicial notice?
The court can recognize a fact to be true without formal evidence, if it:
(1) is generally known
(2) can be accurately or readily determined
Are judicially noticed facts conclusive in civil cases? Criminal cases?
Civil cases = Yes
Criminal cases = No
When can judicial notice be taken? When must it be taken?
Judicial notice can be taken any time!
It must be taken if a party requests it
Who decides on the relevance and authenticity of evidence: Judge or Jury?
The jury
Who decides the level of the witness’s personal knowledge of the facts they’re testifying to: Judge or Jury?
The jury
Who decides in a breach of contract case whether one party acted as the agent of another: Judge or jury?
The jury
Who decides whether a witness is mentally competent or entitled to a privilege: The judge or the jury?
The judge
Who decides whether evidence satisfies the hearsay exception: Judge or jury?
The judge
In what cases must the judge excuse the jury when deciding preliminary questions?
Judge must excuse jury if:
(1) Deciding the admissibility of a confession
(2) The defendant in a criminal case requests it
(3) Justice requires
What are the two burdens involved in the ‘burden of proof’?
Burden of production - Carried by the party making the prima facie case
Burden of persuasion:
Civil = Preponderance of evidence
Criminal = Beyond a reasonable doubt
What is the spousal immunity privilege? When does it apply?
One spouse cannot be compelled to testify against the other spouse
Applies in criminal cases only
Does the spousal immunity privilege allow the party-spouse to prevent the witness-spouse from testifying?
NO. Witness-spouse gets to pick whether they testify. Nobody can make them, nobody can stop them. They are our only hope for the future.
Does the spousal immunity privilege survive the marriage?
No - spousal immunity is only during the marriage.
The spouse is immune. Not a spouse, no immunity. It’s in the name.
Does the spousal immunity privilege survive the marriage?
No - spousal immunity only exists during the marriage.
The immunity is spousal. So for spouses. Not a spouse, no immunity. It’s in the name.
Does the spousal immunity privilege survive the marriage?
No - spousal immunity only exists during the marriage.
The immunity is spousal. So for spouses. Not a spouse, no immunity. It’s in the name.
Does spousal immunity cover information from during or before the marriage?
Both - spousal immunity covers information from before or during the marriage
What is the confidential marital communications privilege? When does it apply?
Communications made in reliance on the intimacy of a marital relationship are privileged
Which spouse holds the confidential marital communications privilege?
BOTH spouses hold the privilege - They can keep each other from disclosing confidential marital communications
Does the confidential marital communications privilege survive the marriage?
Yes! The privilege protects communication made during the marriage, regardless of the state of the marriage.
Does the confidential communications privilege protect communications made before or after the marriage?
No - the privilege protects MARITAL communication. If they’re not married, the communication is not marital. It’s in the name. Reading comp!
In what three situations do NO marital privileges apply?
(1) Furtherance of future joint crime or fraud
(2) Legal actions between spouses
(3) When one spouse is charged with a crime against other spouse
What is the attorney-client privilege?
Confidential communications between attorney and client during professional consultations are excluded and privileged from disclosure
What makes a communication “confidential”?
When it’s made NOT in the known presence or earshot of a third person
Does attorney-client privilege apply to information, documents, or physical evidence?
NO - it only applies to communications
Are disclosures made before the attorney decides whether to take the case protected by the attorney-client privilege?
Yes - it is crucial as an attorney to not run your mouth. Everything is a secret.
Are corporate clients, employees of clients, and agents of client or attorney protected by attorney-client privilege?
Corporations = Yes
Employees = Yes, if they’re authorized to make the statements
Agents = Yes
How long does the attorney-client privilege last?
FOREVER. Post mortem. Literally after death. When I die, put my money in the grave!
Is there attorney-client privilege in disputes between attorney and client where (a) legal services or at issue or (b) there’s an alleged breach of duty?
No! There’s no attorney-client privilege in disputes between the attorney and the client
Is there attorney-client privilege where client uses services for crime or fraud?
No! There’s no attorney-client privilege for crime, tristemente
Is there attorney-client privilege when the parties are claiming through the same deceased client?
No
Is there attorney-client privilege when joint parties against a third party turn against each other?
No - and I hope I’ll be able to recognize this soap opera ass hypo.
Is attorney work product protected by attorney-client privilege?
No; BUT work product is still usually not subject to discovery, unless necessary
What is waiver of the work product privilege? Does it apply to disclosed or undisclosed material?
Waiver = Voluntary disclosure of privileged material.
Applies only to DISCLOSED work product or communications.
When is privileged, undisclosed work product material subject to waiver?
Undisclosed material is only subject to waiver if:
(1) the waiver was intentional
(2) the disclosed and undisclosed material are on the same subject
(3) the material should be considered together to avoid unfairness
Is there waiver for accidental, inadvertent disclosures?
No! Everybody makes mistakes, everybody has those days. No waiver if it was a whoopsie.
What is the physician-patient privilege?
Confidential information acquired by physician is privileged if:
(1) professional relationship between doc + patient
(2) info was acquired for purpose of diagnosis or treatment, AND
(3) info was necessary for diagnosis or treatment
In what 4 situations is there no physician-patient privilege?
(1) Disputes between patient + doc, or where physical conditions is at issue
(2) doctor’s assistance was sought to aid wrongdoing
(3) Patient waived privilege by contract
(4) It’s a federal case applying federal law
What is the clergy-penitent privilege?
Same thing as attorney-client, but for communications made to clergymen in their capacity as clergymen
What is the privilege against self-incrimination?
Exactly what you think it is. The witness does not have to testify against themselves.
What is the governmental privilege?
Unless voluntarily disclosed, information is privileged if it is:
(1) official information not otherwise open to the public
(2) the identify of an informant
Which privileges are only at the state level?
(1) Physician-patient
(2) Accountant-client
(3) Professional Journalist privilege
Is it a constitutional right for journalists to protect their sources?
No! But it is a state-level privilege against disclosure in some places
Are opposing party statements EXCLUSIONS or EXCEPTIONS to the hearsay rule?
Opposing party statement are exclusions - they are NOT hearsay!
What types of opposing party statements are admissible nonhearsay?
(1) Judicial and extrajudicial statements
(2) Adoptive statements
(3) Vicarious statements
What is an opposing party adoptive statement?
(1) Statements expressly adopted (“ya jon i agree i’m gonna adopt that statement as my own” i guess)
(2) Statements adopted via silence if the party could have denied it, and a regular person would have, but they didn’t
What are the 5 types of vicarious opposing party statements?
(1) Authorized spokespersons
(2) Business partners on statements related to business matters
(3) Co-conspirators on statements in furtherance of a conspiracy
(4) Joint tenants and privies in title
(5) Employee statements sometimes
When can employee statements be an opposing party’s vicarious statement?
When the statement is:
(1) Regarding a matter within the scope of employment, AND
(2) Made during the existence of employment
Can statements made by co-parties be vicarious opposing party statements?
No! One co-party never speaks for another co-party
When and how can a witness’s former testimony be admitted?
A witness’s former testimony can be admitted as a hearsay EXCEPTION when the declarant is unavailable to testify.
Whom can a witness’s former testimony be offered against?
A witness’s former testimony is admissible against a party who (1) had the opportunity and motive to develop the declarant’s testimony (2) under oath (3) at a prior proceeding
When and how are statements against interest admissible?
When a declarant is unavailable, their statements against their interests are admissible as hearsay EXCEPTIONS
To be admissible, a statement against a party’s interests needs to be against one of which three kinds of interests?
The statement must be against either the party’s:
(1) monetary interests
(2) property interests
(3) penal interests
Must statements against a party’s interests be corroborated to be admissible?
CRIMINAL cases = YES
Civil cases = No
Are statements against someone’s social or reputational interests admissible under the statements against interests exception?
No! Only money, property, penal
When a declarant makes a statement against their interest among other surrounding remarks, are the surrounding remarks also admissible?
Nope! Just the statement against interest
When and how are dying declarations admissible?
A declarant’s dying declarations are admissible as hearsay exceptions when the declarant is unable to testify
What are the requirements for a dying declaration to be admissible?
(1) Declarant thought they were dying
(2) The remark is about the cause or circumstances of the impending death
BUT they don’t have to actually die!
When and how are statements of personal or family history admissible?
When the declarant is unavailable to testify, as an exception to hearsay
What happens if a defendant wrongfully causes a witness to be unavailable and absent from trial?
That witness’s statements are admissible against the defendant as an exception to the hearsay rule
What are the 5 hearsay exceptions for when the declarant is unavailable?
(1) Former testimony
(2) Statement against interests
(3) Dying declaration
(4) Statements of family or personal history
(5) Statements offered against party who wrongfully procured declarant’s absence
What are the 5 situations that make a declarant unavailable to testify?
(1) Death or illness
(2) Privileged from testifying
(3) Refusal to testify
(4) No memory of subject
(5) Absent and can’t procure testimony by other means (like depositions)
Are prior statements of testifying witnesses considered hearsay?
NO - these statements are hearsay EXCLUSIONS. Not statements that would be admissible as exceptions.
What prior inconsistent statements are admissible?
Those given under oath at prior proceedings
When are prior consistent statements admissible?
Prior consistent statements are admissible to rebut:
(1) accusations of lying for motive
(2) impeached credibility
What 3 types of prior statements of the testifying witness are admissible?
(1) Prior identification of someone the witness perceived earlier (even if they can’t remember making the identification)
(2) Prior inconsistent statements
(3) Prior consistent statements in rebuttal
What are verbal acts? What are legally operative facts? Are these hearsay? How come?
Verbal acts = Word crimes like defamation
Legally operative facts = Binding words like words of contract
NOT hearsay because NOT offered for the truth of the matter asserted
Are statements offered to show the effect on the listener (or reader) admissible? How come?
YES, they are admissible because they are not offered for the truth of the matter asserted.
Are statements offered as circumstantial evidence of the declarant’s state of mind admissible? How come?
Yes, because they are not offered for the truth of the matter asserted
What are you usually trying to show when offering evidence of declarant’s state of mind?
(A) Trying to show that someone is insane
(B) Trying to show someone’s knowledge
