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evidence Flashcards

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1
Q

Leading Questions

A
  • NOT Allowed on Direct
  • ALLOWED for
    -basic preliminary info,
    -witnesses that need help testifying
    -hostile witnesses
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2
Q

Rule of Completeness

A

If a party introduces part of a written statement, the opposing party may introduce other portions of that statement that are necessary to put the admitted portion into perspective

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3
Q

Present Recollection Refreshed

A
  • Witness has trouble remembering
  • Allowed to help witness remember by showing them a document
  • Witness looks at notes, remembers, puts notes aside, and proceeds to testify from present memory
  • Document does NOT become evidence, witness does NOT read from it
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4
Q

Destruction of Evidence

A

If a party destroys evidence, presumption that evidence would have been adverse to that party

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5
Q

Relevance

A

Evidence is relevant if it is both MATERIAL and PROBATIVE

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6
Q

Exclusion of Relevant Evidence that is Prejudicial

A

Judge may exclude if risk of prejudice substantially outweighs probative value
R > PV

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7
Q

Character Evidence, Generally

A
  • Cannot argue that a person acted in conformity w/ a particular character trait
  • Prevents a party from proving a character trait in order to show action in conformity w/ that character

** CAN be introduced if not to show propensity, but rather for some other purpose, or if character is an essential element (or to show propensity of being a liar for impeachment ig)

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8
Q

Methods of Proving Character

A

When character evidence IS admissible,

  • CAN be proved through reputation or opinion testimony
  • CANNOT be proved by specific bad acts
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9
Q

Character Evidence, Criminal Defendant’s Character

A
  • P cannot introduce evidence of bad character, unless door is opened
  • D can introduce a pertinent trait of character, but this opens the door
  • If door is opened, P can attack D’s character (can use specific acts)
  • D cannot use specific acts
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10
Q

Character Evidence, Criminal Victim’s Character

A
  • D may bring evidence about V’s character, including pertinent trait, but this opens door
  • If door is open, P can introduce evidence that V is not [character trait] AND can introduce evidence that D is [character trait]
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11
Q

Mimic Evidence

A

May be introduced for purpose other than propensity:

  • Motive
  • Intent
  • Absence of Mistake
  • Modus Operandi
  • Common Plan or Scheme
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12
Q

Habit Evidence

A
  • Evidence of something routine, regular, or automatic
  • Admissible to prove action in conformity w/ that habit
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13
Q

Witness Competency

A
  • Anyone who has Personal Knowledge of the matter about which they are going to testify and is willing to make an oath to tell the truth
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14
Q

Juror as a Witness

A
  • may NOT testify as a witness in a trial in front of the jury they are a part of
  • may NOT testify as a witness into an inquiry into the validity of a verdict
  • MAY testify after trial about PREJUDICIAL information brought to the jury’s attention, an OUTSIDE INFLUENCE was improperly brought, a CLERICAL ERROR was made in entering verdict, or a juror RELIED on RACIAL animus
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15
Q

Ways to Impeach

A
  • Show that the witness is dishonest; bad character for truthfulness
  • Bias: Witness has a reason to lie
  • Sensory Competence: Witness is mistaken in some way
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16
Q

Impeachment, Character Witness Testimony

A
  • Can introduce character witnesses (c1) who will testify that the target witness (c0) is dishonest

*Reputation or Opinion testimony, NOT Specific Acts

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17
Q

Impeachment, Specific Acts

A

May Cross Examine c1 about specific acts of dishonesty

  • must be probative of untruthfulness
  • must have good faith basis
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18
Q

Impeachment, Criminal Convictions

A
  • Prior Crimes involving dishonesty, admissible for impeachment

*Prior Felonies, admissible for impeachment UNLESS R.O.P. [>] PV

  • Criminal case, c0: evidence of a prior felony conviction admissible ONLY if PV > prejudicial effect
  • 10 yrs since conviction/release from confinement, admissible for impeachment ONLY if PV [>] prejudicial effect AND reasonable advance notice
  • Pardoned convictions NOT admissible for impeachment
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19
Q

Impeachment, Prior Inconsistent Statements

A
  • Can be proved w/ extrinsic evidence, but ONLY if witness is given opportunity to explain himself
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20
Q

Rehabilitation of Impeached Witness

A

1) Give witness chance to explain himself

2) Introduce Prior Consistent Statement of witness

3) If attacked for untruthfulness, then reputation/opinion evidence bolstering their truthfulness can be admitted

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21
Q

Lay Witness

A
  • Generally limited to fact observation, but permitted to testify on their OPINION when:
    -Rationally based on their perception
    -AND Helpful to a clear understanding
  • CANNOT offer opinions on scientific/specialized/technical knowledge
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22
Q

Best Evidence Rule, the Rule

A
  • NO describing the documents instead of showing them, unless you truly need to
  • Duplicates are fine, UNLESS genuine question as to authenticity OR original should, in fairness, be required
23
Q

Best Evidence Rule, Exceptions

A
  • Unavailable: original lost/destroyed, cannot be obtained
  • Public Records: can use cert copy
  • Voluminous Writings: Originals must be made available for inspection but can be presented in charts/summaries

*Admissions by a Party

24
Q

Physician-Patient Privilege

A
  • Statements made by a patient to a Dr. for purpose of obtaining medical treatment (NOT FEDERAL)

*Exceptions:
-Info was for reason other than treatment
-Illegal purpose
-Dispute between Patient and Dr.

25
Q

Psychotherapist-Patient Privilege

A
  • Communications between patient/psychiatrist, etc. for the purpose of treatment
  • Exceptions:
    -Results of Court-ordered exam
    -communication taken as part of commitment proceeding
26
Q

Confidential Marital Comms

A
  • Protects comms between spouses
  • Held by BOTH spouses, survives AFTER marriage
  • Does NOT apply when spouse sues other, OR when spouse commits crime against other/children
27
Q

Spousal Immunity

A
  • Gives right to spouse to not testify against other
  • Held by ONE spouse, does NOT survive after marriage
  • Does NOT apply when spouse sues other, OR when spouse commits crime against other/children
28
Q

Public Policy Exceptions

A

-Liability Insurance
-Subsequent Remedial Measures
-Settlement Offers/Negotiations
-Offers to Pay Med Expenses
-Plea Negotiations

29
Q

Past Sexual Conduct, V’s Conduct

A
  • Evidence of V’s past sexual conduct is NOT admissible in proceeding involving sexual misconduct
  • Crim Exceptions:
    -show D was/was not source of PHYSICAL evidence
    -show CONSENT
    -exclusion would be UNCONSTITUTIONAL
  • Civ Exceptions
    -admissible if PV [>] ROH to V and ROP to any party
    -reputation evidence admissible if V brings it up
30
Q

Past Sexual Conduct, D’s Conduct

A

In crim/civ case where D is accused of sex crime, evidence of prior like-convictions is admissible

  • Legal use of PROPENSITY argument
31
Q

Multiple Hearsay

A

an exception will be required for EACH level of hearsay

32
Q

Definitional Non-Hearsay

A

-Prior Inconsistent Statements (oath)
-Prior Consistent Statements
-Prior IDing Statements
-Admissions of Party Opponent

33
Q

Exceptions to Hearsay, Declarant Unavailable

A
  • Must show Declarant unavailable

-Former Testimony
-Dying Declaration
-Statements Against Interest
-Statements of Family History

34
Q

Exceptions to Hearsay, Declarant Available/Unavailable

A

-Present Sense Impression
-Excited Utterance
-State of Mind
-Statement for Med Diagnosis/Treatment
-Past Recollection Recorded
-Business Records
-Public Records
-Learned Treatise
-Conviction

35
Q

Former Testimony

A
  • Declarant Unavailable
  • Given by Unavailable witness under OATH
  • Other party MUST have had opportunity and similar motive to develop the testimony thru cross-exam
36
Q

Dying Declaration

A
  • Declarant Unavailable
  • Requires
    1) Dec believes she is dying
    2) Dec believes death is imminent
    3) Statement relates to cause of death
37
Q

Statement Against Interest

A
  • Dec Unavailable
  • At time statement was made, it was against Dec’s interest such that a reasonable person would not have made the statement unless it were true
  • Statements subjecting Dec to crim liability admissible ONLY if corroborating circumstances
38
Q

Statement of Personal/Family History

A
  • Dec Unavailable
  • Statements concerning Dec’s own birth, adoption, marriage, familial relationship, etc.
39
Q

Prior Inconsistent Statement

A
  • Non-Hearsay
  • Dec MUST 1) testify as witness and 2) be subject to cross
  • Must have been made under OATH
  • Admissible to impeach and for TOMA
40
Q

Prior Consistent Statement

A
  • Non-Hearsay
  • Dec MUST 1) testify as witness and 2) be subject to cross
  • Admissible to rehabilitate and for TOMA
41
Q

Admission of Party Opponent

A
  • Non-Hearsay
  • If a statement that is being offered against a party opponent was made by that party opponent, it is admissible
  • Can be adoptive, vicarious, by a co-conspirator
    -CANNOT “bootstrap” (rely solely on content of statement to establish agency connection)
42
Q

Present Sense Impression

A
  • Dec Available
  • Statement made while Dec was perceiving the event (OR immediately after)

*Must describe or explain the event

43
Q

Excited Utterance

A
  • Dec Available
  • Statement relating to a startling event while Dec is still in the state of excitement caused by the event
44
Q

State of Mind

A
  • Dec Available
  • Statement of Dec’s then-existing physical, mental, or emotional condition
  • Statement of Intent cannot be used to prove conformity w/ that intent
45
Q

Statement made for Purposes of Med Diagnosis/Treatment

A
  • Dec Available
  • Describe a patient’s medical history or past/present symptoms, or even the cause of an injury, if pertinent to treatment or diagnosis
  • Need not be made directly to Dr.
46
Q

Past Recollection Recorded

A
  • Dec Available
  • When a witness has inadequate memory to testify about a matter for which a record exists, the witness may READ the record to the jury IF:

1) Record concerns a matter about which the witness once had KNOWLEDGE
2) Record was prepared or adopted by the witness when the matter was FRESH
3) Record accurately REFLECTS the knowledge
4) Witness TESTIFIES he has insufficient memory of the event to testify fully/accurately

  • Witness may READ to jury, but NOT introduce into evidence

*Adversary party MAY introduce into evidence

47
Q

Business Records

A
  • Dec Available
  • Any record or writing of an act/event made in the course of a regularly-conducted business activity
  • Admissible if record was made:

1) At/near the time of the event it records
2) By a person w/ knowledge of the event and under a duty to report it
3) As part of the regular practice of business to make that kind of record

*Records made in ANTICIPATION of litigation not admissible as business records

  • Courts MAY exclude IF lacks trustworthiness
48
Q

Public Records

A
  • Dec Available
  • Certain records of public agencies that cover agency’s Activities, Observations, and Factual Findings

*POLICE REPORTS: can ONLY introduce activities, NOT what was observed or concluded
-Fine for past rec recorded

49
Q

Learned Treatise

A
  • Dec Available
  • May be used to Impeach expert witnesses
  • May be used as Substantive Evidence once 1) it is established as a reliable authority, 2) an expert relied on it, OR 3) it was used to cross-examine an expert
50
Q

Judgment of Previous Conviction

A
  • Dec Available
  • Admissible to prove any fact that was ESSENTIAL (an element) to the judgment
51
Q

Other Dec Available Exceptions

A

-Records of Vital Statistics
-Records of Religious Organizations
-Marriage and Baptismal Certificates, and other Family Records
-Statements in Ancient Documents
-Market reports and commercial publications

52
Q

Confrontation Clause

A
  • Crim Ds have the right to be confronted with the witnesses against them
  • Witnesses must testify in front of accused; strong preference for face-to-face confrontation
  • Obvious accommodations for vulnerable witnesses like children are allowed
53
Q

Crawford Doctrine

A
  • Out-of-court statements that are testimonial [may] not be allowed
  • Statements are testimonial if they are made with primary purpose of ascertaining past criminal conduct
  • Testimonial statements only admissible if 1) Dec is unavailable and 2) D had prior opportunity to cross-examine Dec
  • Statements made to get emergency help are not testimonial
54
Q

Due Process Clause

A

If evidence rules restrict a Crim D’s ability to mount a defense, may violate Due Process Clause

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