Evidence Flashcards

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1
Q

Relevance

A

First hurdle, irrelevant evidence never admissible

What is:
Tends to make existence of any fact of consequence to the determination of the action more or less probable than without the evidence
(i) Must be offered to prove a fact of consequence
(ii) Evidence makes that fact of consequence more or less probable

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2
Q

Probative Value

A

The degree to which evidence affects a fact of consequence

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3
Q

Rule 403: Court’s Discretion

A

Judge has discretion to exclude evidence if probative value substantially outweighed by its prejudicial effects.

Some examples:
Unfair prejudice
Confusion of issues
Misleading jury
Waste of time
Undue delay
Cumulative/Repetitive

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4
Q

Unfair Prejudice

A

Evidence has the potential to move the jury on some improper basis

Types of unfair evidence:
Emotion: Where evidence can move the jury to base the case on emotional considerations (anger, etc)

Or, Jury moved to be prejudiced against someone as he’s a bad person
Evidence admissible on limited basis

Jury may use limited evidence for other purpose, unfair.

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5
Q

Similar Occurrences Evidence

A

Relevance based on parties or events in case usually, but
Sometimes evidence based on other events and other people and what is at issue

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6
Q

Similar Occurrences Evidence: Evidence of similar accidents or injuries

A

May be admissible to prove:
Existence of a dangerous condition
Causation
Notice to defendant

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7
Q

Similar Occurrences Evidence: Evidence that a Plaintiff had prior accidents or lawsuits

A

Generally inadmissible if irrelevant to case in question
Exceptions where admissible:
Pre-existing conditions
Suffered injury to same part of the body, therefore D not responsible
Pattern of false claims
Many groundless claims in the past

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8
Q

Similar Occurrences Evidence: Intent

A

Similar occurrences may be admissible to show D’s intent in current case

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9
Q

Similar Occurrences Evidence: Rebut Claim of Impossibility

A

Show feaseability

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10
Q

Similar Occurrences Evidence: Comparable Sales to Establish Value of Property

A

Similar property in same area at similar time

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11
Q

Similar Occurrences Evidence: Habit Evidence

A

Admissible as circumstantial evidence that person acted in accordance with habit on occasional issue
Habit: regular response to set of circumstances
Specific conduct, specific situation, and repeated (not judging action)
Not character evidence

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12
Q

Similar Occurrences Evidence: Routine Practice

A

Business or organization routine practice

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13
Q

Similar Occurrences Evidence: Industrial Custom

A

Evidence as to how others in the same trade or industry have acted in the past

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14
Q

Public Policy Exclusions: Evidence of Liability Insurance

A

Not admissible to prove negligence/wrongful conduct

Exceptions:
Relevant for other than wrongful conduct.
Ownership or control
Impeach a witness
Part of an admission of liability
Bias

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15
Q

Public Policy Exclusions: Subsequent Remedial Measures

A

Inadmissible to prove negligence, culpable conduct, defect, or need for warning or instruction.

Exceptions:
Relevant for other than wrongful conduct
Ownership or control
Feasibility
Destroyed Evidence

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16
Q

Public Policy Exclusions: Civil Settlements and Settlement Negotiations

A

Settlements, offers, and conduct or statements in negotiations inadmissible to:
Prove validity or amount of claim
Impeach by prior inconsistent statement or contradiction

Disputed claim required:
Evidence excluded only if:
Claim/threat of claim
Disputed as to validity or amount

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17
Q

Public Policy Exclusions: Plea Discussions

A

Inadmissible:
Offers to plead guilty
Withdrawn guilty pleas
Actual nolo contendere (no contest) pleas
Statements in plea discussions

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18
Q

Public Policy Exclusions: Payments of and Offers to Pay Medical Expenses

A

Inadmissible to prove liability
But accompanying admissions of fact are admissible

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19
Q

Character Evidence Purposes

A

Usually inadmissible

Purposes:
To prove character when directly at issue (rare)
Prove how person probably acted (conduct in conformity/propensity evidence)
Impeachment

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20
Q

Character Evidence Methods

A

Specific acts
Opinion testimony
Reputation testimony

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21
Q

Character Evidence in Civil Cases

A

Generally not admissible to prove conduct in conformity
Exception for civil sexual assault or child molestation cases
Admissible When Directly at Issue

Rare and limited to:
Defamation
Negligent entrustment or hiring
Child custody disputes

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22
Q

Character Evidence in Criminal Cases

A

When trial begins, prosecutor cannot “open the door” to allow character evidence for D or victim

Limited exception for sexual assault and child molestation cases

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23
Q

Criminal Cases

A

When trial begins, prosecutor cannot “open the door” to allow character evidence for D or victim

Limited exception for sexual assault and child molestation cases

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24
Q

Character Evidence Presented by Defendant

A

D can prove own character for pertinent trait by reputation and/or opinion testimony
BUT NO specific acts

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25
Q

Character Evidence Presented by Defendant: Prosecution’s Rebuttal Options

A

Offering evidence of D’s bad character

Cross-examine D’s character witnesses and ask about specific instances

Attack basis for direct examination testimony:
“Have you heard, that”; “Did you know, that”

Only admissible to impeach character witness, not to show conduct in the case
Once asked about, can’t bring more witnesses or evidence to “prove” specific instance

Once the door is opened, it stays open.

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26
Q

Character Evidence for Victim’s Character

A

D can offer reputation and/or opinion testimony concerning victim’s character for a relevant trait

Opens door for both victim and Defendant

Opens door for Prosecution to rebut with:
Victim’s good character for the same trait,
Defendant’s bad character for same trait

Consider specific acts could be brought in for D’s state of mind or other non-character reasons

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27
Q

Special Rule: When Prosecution Can Initiate Character Evidence

A

Any evidence admitted that victim was first aggressor in homicide case where D claims self-defense opens the door to evidence of victim’s good character for peacefulness

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28
Q

Character Evidence: Sexual Assault Exception

A

Victim’s past behavior is generally inadmissible, no sexual behavior or disposition. Rape shield law.

Exceptions in criminal cases:
Instances with third person to prove source of injury or physical evidence
Instances with D to prove consent

Exceptions in civil cases:
Probative value substantially outweighs harm
Victim places own reputation in controversy in the case (ie. victim testifies to reputation for chastity)

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29
Q

Exception to all Character Evidence rules

A

Person’s other misconduct generally inadmissible if offered solely to prove conduct in conformity

But may be admissible if provided for a non character purpose.
Common Non-Character Purposes:
Motive
Intent
Mistake (absence of)
Identity
Common Plan or Scheme

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30
Q

Character Evidence: Exception for D’s Similar Misconduct in Sex Crime Cases

A

D’s other similar acts are admissible in any criminal or civil case involving alleged sexual assault or child molestation

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31
Q

Witness Competency

A

Personal knowledge
Oath or affirmation to testify truthfully

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32
Q

Witness Competency: Appropriate objections

A

Lacks personal knowledge
Hearsay

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33
Q

Witness Competency: Special categories of witnesses

A

Children: case by case basis
Mental illness: Competent if witness understands obligation
Judge and jurors: incompetent to testify

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34
Q

Witness Competency: Jurors

A

Inquiry into past verdict or indictment
Juror incompetent to testify about deliberations or matters affecting vote except for:
Extraneous prejudicial information
Outside influence
Mistake in verdict form
Another juror’s clear statement that they relied on racial stereotypes or animus

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35
Q

Form of Questioning for Direct Examination

A

Leading questions in direct examination usually not allowed

Except:
Preliminary or introductory matters
Witness needs help responding
Witness is hostile, adverse party, or affiliated with adverse party

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36
Q

General scope of cross examination

A

Asking questions within scope of direct examination
Matters that test witness’s credibility (impeachment)
Can move to direct, but must stop leading

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37
Q

Limits on the form of a question

A

Calls for a narrative (open-ended, tell us what happened)
Non-responsive answer
Assumes facts not in evidence (when did you stop beating your wife)
Argumentative

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38
Q

Witness Uses a Document to Assist While Testifying

A

A witness cannot read from documents to the jury, hearsay

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39
Q

Refreshing recollection

A

Witness may use any writing or object to refresh memory

So long as witness is not reading document and actually recollecting

Doesn’t have to be a document

Whenever a witness has used a writing to refresh their memory while on the stand, an adverse party is entitled to:
Have the writing produced at trial;
Cross-examine the witness about the writing; and
Introduce portions of the writing relating to the witness’s testimony into evidence

If the witness refreshes their memory before taking the stand,
an adverse party is entitled to the above options only if the court decides that justice requires it.

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40
Q

Past Recollection Recorded—Recorded Recollection

A

Where witness cannot remember, even after refreshing, then only option is to try and submit the record.

To do so without being hearsay, must use this exception.

Elements that have to be established:
Witness has insufficient recollection
Witness had personal knowledge
Record made by witness, made under witness’s direction, or adopted by witness (agreed it was correct)
Record was made when matters were fresh in witness’s mind

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41
Q

Limits on Opinion Testimony: Lay Witnesses

A

Generally, witnesses are not to state opinions.

Exceptions:
Rationally based on witness’s perception
Helpful, and
Not based on specialized knowledge

An opinion of a lay witness is generally admissible with respect to:
The general appearance or condition of a person;
The state of emotion of a person;
Matters involving sense recognition;
Voice or handwriting identification;
The speed of a moving object;
The value of the witness’s own services or property;
The rational or irrational nature of another’s conduct; and
A person’s intoxication

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42
Q

Situations Where Opinions of Lay Witnesses Are Not Admissible

A

whether they (or someone else) acted as an agent or
whether a contract was made,
as these are legal conclusions that require specialized knowledge.

The lay witness may testify only as to the surrounding facts

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43
Q

Limits on Opinion Testimony: Experts Generally

A

General requirements:

Expert is qualified
—-Specialized knowledge, skills, or training
—-Area of expertise must match testimony subject

Expert is reasonably certain
—-No guess or speculation

Helpful
—-Need the knowledge for decision

Based on sufficient facts or data
—-Facts based on expert’s own observations
—-Facts made known to expert at trial (hypothetical q)
——–But cannot misrepresent the hypothetical on facts in the case
—-Facts of a type reasonably relied upon by other experts in field

Based on reliable principles and methods

Reliably applied

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44
Q

Expert Reliability (Daubert)

A

Reliability Determined by Court

Daubert factors:
Testing
Peer Review and publication
Error Rate
Standards controlling operation
General acceptance by other experts

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45
Q

Learned Treatise Hearsay Exception

A

Established as reliable authority
Called to expert’s attention on cross or relied upon on direct
Excerpt read into evidence (not received as exhibit)

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46
Q

Expert Opinion on Ultimate Issues

A

Permitted except for testimony concerning defendant’s mental state in criminal case

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47
Q

Credibility and Impeachment: Bolstering

A

Bolstering witness’s testimony generally prohibited

Except: Impeachment needs to come before credibility can be asserted

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48
Q

Forms of Impeachment

A

Examination of witness
Extrinsic evidence (other witness or documents)

Note:
Is extrinsic evidence allowed under this impeachment method?
Any foundation requirements?

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49
Q

Impeachment Methods

A

Facts specific to case:
Prior Inconsistent Statements
Bias
Sensory deficiencies
Contradiction

General bad character for untruthfulness:
Opinion or reputation evidence of untruthfulness
Prior convictions
Prior bad acts involving untruthfulness

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50
Q

Impeachment Methods: Prior Inconsistent Statements

A

May be done on examination of witness or with extrinsic evidence
Extrinsic evidence must be relevant and foundation required
Note: just impeachment, careful for truth of the matter asserted
Also, admissible as substantive evidence if made under oath at a prior proceeding

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51
Q

Impeachment Methods: Prior Inconsistent Statements: Foundation Requirements for Extrinsic Evidence

A

Foundation for extrinsic evidence:
Must not be collateral (probative of facts at hand)
At some point during case, generally must:
Give witness opportunity to explain or deny
Give adverse party opportunity to examine witness

Exceptions:
Where prior inconsistent statement is opposing party’s statement
Where hearsay declarant is being impeached
Where justice requires

52
Q

Impeachment Methods: Bias

A

Extrinsic evidence allowed, but witness generally must be questioned about bias first

53
Q

Impeachment Methods: Sensory Deficiencies

A

Admissible on examination of witness or by extrinsic evidence
No foundation requirement

54
Q

Impeachment Methods: Contradiction

A

Extrinsic evidence generally permitted unless impeaching fact is collateral

55
Q

Impeachment Methods: Opinion or Reputation Evidence of Untruthfulness

A

Testimony admissible to show impeached witness has poor character for truthfulness
Distinguish from other character evidence rules
NO LIMIT ON EXTRINSIC EVIDENCE HERE

56
Q

Impeachment Methods: Prior convictions: Any crime involving dishonesty or false statement

A

Court has no discretion to balance 403 considerations
Must involve false statements or lying
Remember, just for impeachment here

57
Q

Impeachment Methods: Prior convictions: Felony not involving dishonesty or false statement

A

Witness is criminal defendant in this case:
Court will exclude conviction unless probative value outweighs prejudicial effect

Any other witness:
Court excludes conviction if probative value substantially outweighed by prejudicial effect (standard rule 403)

58
Q

Impeachment Methods: Prior convictions: Remoteness

A

Generally inadmissible if more than 10 years have passed since date of conviction or release from confinement, whichever is later

Court may allow if probative value substantially outweighs prejudicial effect (reverse of 403)

59
Q

Impeachment Methods: Prior convictions: Method of Proof

A

On examination of witness or by extrinsic evidence (record of judgment)

No limit on extrinsic evidence at least without hearsay issues

60
Q

Impeachment Methods: Prior convictions: Limits on admissibility: Pardoned

A

Cannot be used to impeach if:
Pardon based on rehabilitation and no subsequent felony conviction
Pardon based on innocence

61
Q

Impeachment Methods: Prior convictions: Limits on admissibility: Juvenile Convictions

A

Generally not admissible

62
Q

Impeachment Methods: Prior convictions: Limits on admissibility: Constitutionally Defective Conviction

A

Constitutionally Defective Conviction Cannot Be Used

A conviction obtained in violation of the defendant’s constitutional rights is invalid for all purposes, including impeachment

63
Q

Prior Bad Acts Involving Untruthfulness

A

Interrogation permitted
Extrinsic evidence prohibited

64
Q

Impeachment of Hearsay Declarant

A

Impeached to same extent as in-court witness
Need not be given opportunity to explain or deny prior inconsistent statement

65
Q

Witness Rehabilitation

A

Explanation on redirect
Good character for truthfulness (reputation or opinion testimony)
Remember, need credibility attacked to rehabilitate

66
Q

Prior Consistent Statement

A

Admissible for credibility when:
When witness attacked with charge of lying or exaggerating because of some motive subsequent to statement
When witness impeached on other non-character ground

If admissible to rehabilitate, not hearsay

67
Q

Hearsay

A

A statement, not made by the declarant while testifying at current trial or hearing, offered in evidence to prove the truth of the matter asserted.

Inadmissible without an exception
Oral or written assertion
Nonverbal conduct intended as assertion
Humans only, animals and machines no

Statements from a different trial or hearing can be hearsay

Hearsay can be made in a court room just not the same court room

68
Q

Hearsay Approach

A

Approach:

Find the statement
Determine what it’s being offered to prove
—Which party is making the motion?
—Must be relevant
Consider whether jury will be misled if declarant was lying or mistaken
—If yes, hearsay

69
Q

Common Non-Truth Purposes for Apparent Hearsay

A

Verbal acts/legally operative language/language of independent legal significance
Some law says just uttering certain words creates independent legal significance

Offered to show it was made
“I accept” for a contract case, not hearsay
D said “Plaintiff cheats on his wife”. Not to assert P does, but to show he said it in defamation action

Effect on Listener or Reader
Could show notice, etc

Circumstantial evidence of speaker’s state of mind
Ex, maybe sanity is at issue
“I said I am Dracula”

Testifying Witness’s Own Out-of-Court Statement Can be Hearsay
“Not hearsay because it is the witness’s own statement” watch out for this choice

70
Q

Hearsay Exclusions vs Exceptions

A

Exclusions: Admissible because it’s not hearsay
Exception: Is hearsay, but admissible

71
Q

Hearsay Within Hearsay

A

Admissible only if each statement falls within an exception (or is otherwise admissible over a hearsay objection)

72
Q

Exclusions: Certain Prior Statements by Testifying Witnesses

A

Examples
Prior Statement is a statement of identification after perceiving them
Prior inconsistent statements given under oath

Certain prior consistent statements:
When witness charged with lying or exaggerating due to recent motive, and statement pre-dates motive
When witness impeached on other non-character ground

73
Q

Exclusions: Statement by Opposing Party

A

Statements by or attributable to an opposing party are not hearsay
Made by party, or someone else and attributed to party
Must be offered in by party opponent

74
Q

Exclusions: Statement by Opposing Party: Adoptive Statements

A

Party express or implied adoption of another’s statement can be used against them
Ex. can be agreement by party

Party’s silence in face of accusation admissible if:
Party heard and understood it
Party was capable of denying it
Reasonable person would have denied it

75
Q

Exclusions: Statement by Opposing Party: Vicarious Statements by Opposing Party

A

Authorized spokesperson
Ie. Statement made in a press release

Agent/Employee statement if:
Concerned matter within scope and
Made during relationship

Partner:
Relating within scope of partnership’s business, all other partners

Co-Conspirators:
If statement made in furtherance of conspiracy

Note: Party offering evidence has to prove a particular relationship exists
Statement in and of itself is not enough on its own

76
Q

Unavailability Established by

A

Death or illness
Privilege
Refusal to testify despite court order
Inability to remember subject matter
Absent and attendance cannot be procured

77
Q

Exceptions: Former Testimony

A

Declarant unavailable
Testimony was given under oath in same case, or
If in another case, party whom testimony now being offered (or in civil cases, their predecessor in interest) had opportunity and similar motive to develop it

78
Q

Exceptions: Statements Against Interest

A

Statement against declarant’s pecuniary, proprietary, or penal interest when made
Limitation: In criminal cases, statements against penal interests must be corroborated
Only admit part against interest, redact the rest

79
Q

Exceptions: Dying Declarations

A

Unavailable declarant
Homicide prosecution or any civil case (not attempted!)
Declarant believed their death was imminent
Statement concerned cause or circumstances
Death NOT required in federal rules

80
Q

Dying Declarations

A

Unavailable declarant
Homicide prosecution or any civil case (not attempted!)
Declarant believed their death was imminent
Statement concerned cause or circumstances
Death NOT required in federal rules

81
Q

Exceptions: Statements of Personal or Family History

A

Statements concerning birth, death, and other family matters admissible if declarant had personal knowledge of family history

82
Q

Exceptions: Statement Offered Against Party Procuring Declarant’s Unavailability

A

Unavailable declarant’s statements admissible against party who intentionally caused declarant to be unavailable

83
Q

Exceptions: Excited Utterance

A

Relates to startling event
Was made while declarant still under stress or excitement from that event
Emotional state is what makes reliable, not timing

84
Q

Exceptions: Present Sense Impressions

A

Describes or explains event or condition
Made while or immediately after declarant perceives condition

85
Q

Exceptions: Present State of Mind

A

Includes statements of then-existing state of mind or physical condition
Does not include statements of memory or belief

86
Q

Exceptions: Statements Made for Medical Diagnosis or Treatment

A

Statements describing medical history, past or present symptoms, or their inception or general cause
Must be made for and reasonably pertinent to medical diagnosis or treatment
Does not require statement to describe own condition

87
Q

Exceptions: Business Records

A

Record of act, event, condition, opinion, or diagnosis, admissible if:
Made in regular course of business and business regularly keeps such records
Made near time of event
Consists of matters within personal knowledge of entrant (or someone else who had duty to transmit information to entrant)

Foundation:
Custodian of records or other qualified witness must provide either:
In-court testimony
Written certification

Exception: Party offering has to establish all elements, but will still be inadmissible if opponent shows that circumstances indicate record is not trustworthy

88
Q

Exceptions: Public Records

A

Three types:
Activities of Agency
Matters observed pursuant to legal duty but not including police observations in criminal cases
Records of factual findings resulting from legally authorized investigation but not against defendant in criminal case

Must be:
Made by public employee
Acting within scope of duties
At or near the time of the event being described

Again exception: Party offering has to establish all elements, but will still be inadmissible if opponent shows that circumstances indicate record is not trustworthy

89
Q

Exceptions: Public Records: Police records

A

Generally not admissible against criminal defendant under public records or business records exceptions

90
Q

Exceptions: Public Records: Judgments

A

Certified copy of judgment always admissible as proof that judgment was entered

Additionally, felony conviction admissible to prove any fact essential to the judgment
In criminal cases, admissible only against accused
No acquittals, only convictions

Civil judgments typically inadmissible in subsequent criminal case
Also probably subsequent civil cases

However watch for independent legal significance

91
Q

Exceptions: Recorded Recollections and Learned Treatises

A

Admit recorded recollection, covered earlier

92
Q

Exceptions: Residual Exception/Catch-All Exception

A

Trustworthy
Strictly necessary
Reasonable notice to adversary

93
Q

Hearsay and the Confrontation Clause

A

Hearsay statement not admissible against accused in criminal case if:
Declarant unavailable
Statement is testimonial
Accused had no opportunity to cross-examine declarant about statement
Statements made to law enforcement

Depends on primary purpose:
To aid in ongoing emergency = nontestimonial
To provide information for later prosecution = testimonial

94
Q

Authentication: Writings and Spoken Statements

A

To admit a writing, must be authenticated
Standard is: proof is sufficient to support jury finding of genuineness

Examples:
Opponent’s admission
Eyewitness testimony of someone with knowledge
Lay opinion on handwriting (if lay witness has knowledge of it)
Expert opinion on handwriting
Jury comparison of handwriting

95
Q

Authentication: Reply Letter Doctrine

A

Authentication by evidence that document was written in response to communication to alleged author

96
Q

Authentication: Ancient Documents

A

Document authenticated if:
At least 20 years old
In non-suspicious condition
Found in place where such a writing would likely be kept

97
Q

Authentication: Photographs and Videos

A

Must be identified by witness as fair and accurate representation of facts depicted
Generally don’t need photographer to testify

98
Q

Authentication: Physical Objects (x-rays, diagnostics)

A

Nobody can say fair and accurate
As such, need to show process was accurate

99
Q

Authentication: Verbal Statements

A

Sometimes admissible if can be shown made by particular person

Standard:
Voice identification
Voice can be identified by any person who has heard the voice at any time

Telephone conversations
Can be authenticated by:
Party to call recognized speaker’s voice
Speaker had knowledge of certain facts only a specific person would have
Speaker answered phone number and identified themselves as the person in question or their residence
Speaker who answered business’s phone talked about business matters

100
Q

Self-Authenticating Documents

A

Domestic public documents with a seal
Official publications
Certified copies of public records
Newspapers and periodicals
Trade inscriptions and labels
Acknowledged (notarized) documents
Commercial paper
Business records and electronically generated records with certification

101
Q

Best Evidence Rule

A

To prove the content of a writing, recording, or photograph, the original must be produced if the terms are material (subject to certain conditions)

When Applies:
When evidence is being offered to prove the content of a writing, photo, or recording.

Usually:
Where writing is legally operative (contracts, wills, deeds, etc)
Where witness’s knowledge results from having read the writing

102
Q

Best Evidence Rule: Personal Knowledge Exception

A

In-court witness testifying about facts in which they have personal knowledge even if same facts described somewhere else in a writing

103
Q

Best Evidence Rule: Duplicates

A

Exact copy produced by mechanical means

Admissible except when:
Circumstances make it unfair to admit duplicate
Genuine issue raised as to authenticity of original

104
Q

Best Evidence Rule: Secondary Evidence of the Contents

A

Notes, witness testimony, etc
Admissible when:
Original lost or destroyed (not in bad faith)
Original cannot be obtained
Original in possession of adversary who fails to produce it

105
Q

Best Evidence Rule: Exceptions

A

Summaries of voluminous records
Witness can summarize contents if massive amount of information
Certified copies of public records
Collateral writings
Opponent testified or gave written admission about contents of writing

106
Q

Real Evidence

A

Actual physical evidence

Need:
Relevance

Authenticated by:
Usually by recognition testimony or chain of custody
Important If no distinct unique appearance (ie. bag of cocaine)

Testimony as to what the object is when unique

Proof must be sufficient to support jury finding

107
Q

Privilege

A

Ability to refuse to disclose and prevent others from disclosing relevant evidence

What Privilege Law Applies in Federal Courts:
Federal question cases: federal common law applies
Diversity cases: state privilege law applies
Attorney-client privilege
Spousal testimony privilege
Confidential marital communications
Psychotherapist/social worker-patient
Clergy-penitent privilege
Governmental privileges

108
Q

General considerations of Privilege

A

Privileges recognize that specific person is holder (sometimes asserted on holder’s behalf)

Confidentiality
Waiver
—Failure to claim
—Voluntary disclosure
—Contractual waiver
Eavesdropper doesn’t destroy privilege

109
Q

Attorney-Client Privilege

A

Confidential communications

Only protects communications

Client must intend confidentiality

Between attorney and client (and either’s representatives)

Member of the bar, or anyone client reasonably believes to be a member of the bar

During professional legal consultation

Unless exception applies or waived

110
Q

Attorney-Client Privilege: Third Persons

A

Communications remain privileged if made in presence of third persons who are present to facilitate legal services

111
Q

Attorney-Client Privilege: Joint Client Rule

A

When joint clients have common interests, their communications with attorney are not privileged if they sue each other

112
Q

Attorney-Client Privilege: Duration

A

Privilege applies indefinitely, even after death

113
Q

Attorney-Client Privilege: Exceptions

A

Attorney’s services sought to aid in crime or fraud
Must further the crime itself
Breach of duty (such as malpractice)
Client put legal services at issue
Parties claiming through same deceased client

114
Q

Attorney-Client Privilege: Work Product

A

Might be immune from discovery if prepared in anticipation of litigation
Remember:
Voluntary disclosure will remove privilege for what is disclosed

115
Q

Physician-Patient Privilege (State Privilege Only)

A

Confidential information acquired by physician is privileged if:
Professional relationship existed
Information was acquired for the purpose of diagnosis or treatment
Information was necessary for diagnosis or treatment

Exceptions:
Patient put physical condition at issue
Assistance sought to aid wrongdoing
Dispute between physician and patient
Patient agreed to waive privilege
Criminal cases (some states)

116
Q

Psychotherapist/Social Worker-Patient Privilege

A

Operates like attorney-client privilege
Confidential
In process of receiving care, etc
No privilege where patient puts medical condition at issue

117
Q

Spousal Immunity Privilege

A

(Testimonial)(Just Criminal)

In criminal cases, prevents defendant’s spouse from being compelled to testify against defendant
Spouses must be married at time of trial
Even if not married at time of crime
Witness holds this privilege, not accused

118
Q

Confidential Marital Communications Privilege

A

Applies in any civil or criminal case
Either spouse can claim it
Spouses must have been married at time of communication
Privilege remains even if they divorce

Exceptions:
Joint crime-fraud
Legal actions between spouses
Spouse charged with crime against other spouse or either spouse’s children

119
Q

Clergy-Penitent Privilege

A

Protects statements by penitent to clergy member in clergy member’s capacity as spiritual adviser

120
Q

Procedural Considerations: Burden of production

A

Pleading party has the burden of producing evidence to make out its Prima facie case
Then switches to D to rebut

121
Q

Procedural Considerations: Burden of persuasion

A

Civil cases: Usually preponderance of evidence
Criminal cases: Beyond a reasonable doubt

122
Q

Procedural Considerations: Preliminary Questions of Fact

A

Decided by jury:
Jury decides fact questions relating to relevance, including authenticity and personal knowledge

Judge:
Judge first determines that there is sufficient proof to support a jury finding
Judge decides fact questions relating to admissibility (preponderance of evidence)
Judge may consider all non privileged evidence when making determination
Ie. determining if victim thought were dying before putting in hearsay evidence

123
Q

Judicial Notice

A

Court recognizing a fact as true without formal presentation of evidence

Adjudicative Facts:
Facts:
Facts not subject to reasonable dispute because either:
Generally known within trial court’s jurisdiction
Can be accurately and readily determined from sources that cannot reasonably be questioned

Procedural Issues:
Can be taken at any stage
Conclusive in civil case, but not in criminal case

Legislative Facts:
Broad policy questions that a judge may decide are pertinent for the case
Ie. should common law recognize new privilege
Judges have the power to decide what policies govern in a particular case

124
Q

Presumptions

A

Rule requiring that a particular inference be drawn from proven facts

Common presumptions:
Mail delivery
Death following 7-year absence
Presumption against suicide in civil case
Legitimacy
Sanity

Effect:
Shifts burden of production to party against whom the presumption operates

A presumption is overcome when the party introduces some evidence countering the proposed fact

No mandatory presumptions in criminal cases

Judge cannot instruct jury it must find a fact against D

125
Q

Rule of Completeness

A

Where some or all of a writing or recorded statement is introduced into evidence:
Adverse party may require proponent to introduce any other part, or
Any related writing or recorded statement
That ought in fairness be considered at the same time

126
Q

Limited Admissibility

A

Evidence maybe admissible on limited basis
Judge must, upon timely request, issue limiting instruction
Judge may also exclude evidence entirely under Rule 403

127
Q

Rulings on Evidence

A

If judge makes an error on evidence:

Preserving claim of error:
Judge erroneously admitted evidence: Must make a timely and specific objection to evidence

Judge erroneously excluded evidence: Make timely offer of proof, must indicate what evidence would have been if not excluded

Even if not preserved:
Court may still take notice of plain error affecting a substantial right