Evidence Flashcards
Logical relevance
Evidence is relevant if it has a tendency to make a fact more or less probable than it would be without the evidence
Legal Relevance
Relevant evidence may be excluded if it’s probative value is substantially outweighed by the danger of unfair prejudice
Authentication
All tangible evidence must be authenticated. Must produce sufficient evidence to support finding that the thing is what it’s claimed to be
Present recollection refreshed
A witness may examine any item to refresh memory. The relevant portions of the item can be introduced into evidence by the adverse party
Civil cases where character evidence is admissible
- Defamation
- Child custody
- Negligent hiring
- Fraud
Character evidence types that defendant can use in crim cases
Can use reputation or opinion evidence, NOT SPECIFIC INSTANCE
Prosecutor’s character evidence
Can use reputation, opinion, or specific instance IF
1) D opens door
2) It’s MIMIC evidence
3) D claims self-defense
4) D accused of sex crime
Lay witness opinion testimony
Opinion is admissible if it is rationally based on witness’s perception and personal knowledge
Expert Witness
Qualified as an expert by knowledge, skill, experience, or training. Cannot give opinion on mental state of D (mens rea)
Leading Questions on direct exam
Only when:
1) shy or timid child
2) a hostile witness
3) to lay foundation
Judicial notice
Civil: jury MUST accept fact as true
Criminal: jury MAY accept face as true
Ways to impeach
PBS BCBC
1) prior inconsistent statement
2) Bias/Motive
3) sensory defects
4) Bad reputation or opinion about witness’s character for truthfulness
5) Criminal conviction
6) Bad Acts (specific instances of misconduct)
7) Contradiction (between direct and cross-examination)
Hearsay exceptions for unavailability
Sit Down For Fuck’s Sake
Statement against interest
Dying declaration
Former testimony
Forfeiture by wrongdoing
Statement of personal/family history/relationship
Hearsay exceptions regardless of availability
1) Statement for medical treatment
2) then existing state of mind
3) recorded recollection
4) excited utterance
5) present sense impression
6) public/business records
7) treatises, periodicals, pamphlets
Statement for medical diagnoses hearsay exception
Statement about past or present symptoms OR ITS CAUSE for the purpose of getting diagnosed
Then existing mental, emotional, physical state of mind
Mental: I am planning on going to LA
Emotion: I love her that’s why I couldn’t kill her
Physical state: I have a headache, I feel pain
Recorded Recollection
Witness on the stand and cannot remember document made/adopted by witness; can be READ into evidence
Excited utterance
Startling event and declaring makes statement while under the stress of excitement, STATEMENT RELATES TO THE EVENT
Present sense impression
Describing something while observing it happen
Public Record hearsay exception
Record or statement of public office/agency; observations by someone with a duty to report (LIKE A FIRE MARSHALL OR OFFICER’S REPORT)
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Business record hearsay exception
ABC
At or near time of occurrence by someone with knowledge of the event, made during ordinary COURSE of business
Dying declaration exception
Unavailable, believed he was dying, about why he is dying, homicide or civil cases only
Former testimony hearsay
Unavailable, opponent was party to a former case, case was about same subject, made under oath, and party against whom testifying now had opportunity to cross examine before
Statement against interest
UNAVAILABLE, statement by a party or nonparty that makes declarant look liable/guilty
Admissions (hearsay exception)
Statement made by party or one of the parties admits fault. Admissible as non-hearsay
Vicarious admissions hearsay exception
Statements made by employees about company are admissible
Adoptive statements hearsay exception
Party does not respond when a reasonable person would object
Prior consistent statement
My statement now is consistent with what I said before. Refutes charges of improper motive or fabrication
Prior inconsistent statement
Prior statement made by declarant, made under oath, inconsistent with current testimony
Prior identification
Declaring testifying about an earlier identification
Liability insurance
Can be used to show control, ownership, agency, or bias
Completeness rule
When admitting a portion, the whole document may be admitted for fairness
Prior conviction impeachment if more than 10 years
If more than 10 years since release from incarceration or conviction, then:
1) probative value substantially outweighs prejudicial effect AND
2) reasonable written notice of intent to use conviction at trial is give
