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Va Bar > Evidence > Flashcards

Evidence Flashcards

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1
Q

PRESENTATION OF EVIDENCE

A

TOPICS:

Witnesses
Judge & Jury
Objections & Offers of Proof
Burden of Persuasion & Production
Impeachment

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2
Q

Lay Witnesses

(1) Who can be a lay witness
(2) What can/cannot lay witnesses testify about?

A
  1. Anyone, including children, can be a lay witness (except judge or jury)
  2. Can testify as to knowledge/perception, but not expert opinions.
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3
Q

Expert Witnesses

(1) What must the lawyer do?
(2) Is outside evidence permissible?
(3) What can/cannot expert witnesses testify about?

A

1) Must lay foundation/qualify expert
2) Expert can use outside evidence
3) Expert can give opinion on conclusions; Expert cannot give opinion on mental state of defendant if element of crmie

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4
Q

Control of Witnesses

A

The Court can take steps to keep “reasonable control”

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5
Q

Leading Questions

(1) When are they not allowed?
(2) When are they allowed

A

(1) Not allowed on Direct
(2) Allowed:
- Cross Exam
- Hostile witness
- Adverse party,
- Shy witness/child
- Jog memory
- Lay foundation

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6
Q

Refreshing Memory/Recollection

(1) What can you show?
(2) Can it be read into evidence?

A

(1) May show anything to a witness
(2) Cannot be read into evidence

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7
Q

Judge & Jury

(1) What does the Judge handle?
(2) What does the jury handle

A

(1) Judge: rules of law + admissibility
vs
(2) Jury: questions of fact + weight of evidence

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8
Q

Objections and Offers of Proof

(1) What is an Objection to Admission?
(2) What is an Offer of Proof?

A

(1) Objection to admission: must be timely and lawyer states grounds for objection
(2) Offer of proof: evidence was actually excluded and lawyer preserves for appeal

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9
Q

Burden of Persuasion & Production

(1) What is the Burden of Production?
(2) What is the Burden of Persuasion?

A

(1) Burden of Persuasion: P must prove each element

vs

(2) Burden of Production:
- Civil: Preponderance
- Criminal: BaRD

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10
Q

Presumptions

(1) What is a presumption?
(2) What is a rebuttable presumption?
(3) What is a conclusive presumption?

A

(1) Presumption: A conclusion a judge must come to once a party meets its burden

(2) Rebuttable Presumption:
* If prsmpt WAS rebutted - Jury MAY conclude

  • If prsmpt NOT rebutted - Jury MUST conclude

(3) Conclusive Presumption: Jury MUST conclude

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11
Q

Character vs Impeachment

Character Evidence:

1) WHO is Character Evidence about?
2) WHAT is Character Evidence
3) Is Character Evidence generally admissible?

Impeachment:

4) WHO is Impeachment about?
5) WHAT is Impeachment about?
6) Is Impeachment generally admissible?

A

Character Evidence:

1) Character evidence is about the DEFENDANT.
2) Character evidence is about bad things D did in the past.
3) Character evidence is generally NOT ADMISSIBLE.

Impeachment:

1) Impeachment is about WITNESS ON THE STAND (including the Defendant, if he takes the stand).
2) Impeachment is about attacking W’s CREDIBILITY.
3) Impeachment evidence is GENERALLY ADMISSIBLE.

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12
Q

Impeachment

When may you impeach by:

(1) Prior Felony Convictions?

(2) Prior F or M Convictions regarding Honesty/Truthfulness?

(3) Prior NON-Convictions (Bad Acts)?

A

(1) You may impeach by Prior Felony CONVICTION if it occurred within 10 years and passes balancing test.

(2) You may ALWAYS impeach by Prior F or M CONVICTION regarding honesty/truthfulness, and it may be proved by rep/op/acts.

(3) You may ONLY impeach by prior NON-Conviction (Bad Acts) if it relates to honesty/truthfulness, and you may NOT use extrinsic evidence

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13
Q

When may a statement be used as Impeachment AND Substantive Evidence?

A

ONLY if (1) admissible impeachment AND (2) not hearsay.

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14
Q

RELEVANCY & EXCLUDING RELEVANT EVIDENCE

A

TOPICS:

Relevant Evidence
Authentication
Character Evidence
Habit Evidence

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15
Q

Relevant Evidence

(1) What makes evidence relevant?
(2) When may relevant evidence nonetheless be excluded?

A

(1) Any tendency to make a fact more or less probable. Generally admissible.
(2) Unfairly prejudicial, misleading or confusing, causes delay.

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16
Q

Authentication

(1) What must be shown?
(2) How do you authenticate?
(3) What evidence is self-authenticating?

A

(1) Must show “the evidence is what it purports to be”

(2) By direct testimony, by special markings, by testimony with PERSONAL KNOWLEDGE

(3) Official/Notarized Documents, NEWSPAPERS, Seals

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17
Q

Character Evidence

What is Character Evidence?

A

Character evidence: bad things DEFENDANT did in the past. Generally NOT admissible, too prejudicial.

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18
Q

Character Evidence

Character ADMISSIBLE in CIVIL CASES When?

(1) _______________; (1), (2), (3), (4)
(2)

If ADMISSIBLE, how may it be proved?

A

(1) When at issue; (1) Defamation, (2) Child Custody, (3) Negligent Entrustment, (4) Misrep/Fraud

(2) To show MIMIC (not propensity)

Motive
Intent
Mistake (absence of)
Identification
Common Plan or Scheme

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19
Q

Character Evidence

When is Character Evidence NEVER admissible:

(1) in CIVIL cases?

(2) in CRIMINAL cases?

A

(1) Civil: When character evidence is NOT at issue AND it is not used to show MIMIC

(2) Criminal: before Defendant OPENS THE DOOR

20
Q

Character Evidence

(1) Self-Defense Claim

(2) Prior Sexual Acts

A

(1) D can show P was INITIAL AGGRESSOR
(2) P can bring in OTHER INSTANCES of these acts

21
Q

Habit Evidence

(1) What is Habit Evidence?

(2) How can you prove habit?

A

(1) AKA “Routine Practice”
Must be done ALL the time

(2) ONLY though opinion/acts. Habit CANNOT be proved through REPUTATION.

22
Q

Attorney/Client Privilege

A

1) There must be a RELATIONSHIP
2) Applies to ANYONE who works for the attorney
3) Lasts FOREVER
4) Communication must be CONFIDENTIAL

5) Privilege is held by the CLIENT

23
Q

Work Product

A

Generally protected by Attorney/Client Privilege

24
Q

EXCEPTIONS to Attorney/Client Privilege

A

Getting advice on how to commit a crime

Dispute between Attorney & Client

25
Q

Doctor/Patient Privilege

A

Statements ABOUT treatment or diagnosis

Others can be present to assist doctor (nurse) or patient (mom)

26
Q

EXCEPTIONS to Doctor/Patient Privilege

A

1) Patient puts his condition at issue
2) Dispute between Doctor & Patient

27
Q

Spousal COMMUNICATION Privilege

A

Protects confidential information disclosed during marriage. Have to have been married.

Survives divorce.

Applies to all cases.

EITHER Spouse may exert it.

BOTH Spouses must waive.

28
Q

Spousal TESTIMONY Privilege

A

Prevents a spouse from testifying.

Applies ONLY to CRIMINAL cases.

Must be married a trial for it to apply.

ENDS upon divorce.

Witness-Spouse holds the privilege (their choice).

29
Q

EXCEPTIONS to BOTH Spousal Privileges

A

Statements about FUTURE crimes
Statements about child/spouse abuse

30
Q

Judicial Notice

(1) What is judicial notice?
(2) When MUST a judge take judicial notice?
(3) When MAY a judge take judicial notice?

A

1) Stuff that is not subjected to dispute

2) if a party request him to do so

3) At any time

31
Q

Judicial Notice of Law

(1) What law MUST the judge take judicial notice of?

(2) What law MAY the judge take judicial notice of

A

1) Federal or state law
2) Foreign law or municipal ordinance

32
Q

Judicial Notice of Jury Instructions

1) Civil
2) Criminal

A

1) Jury MUST accept as conclusive
2) Jury MAY accept as conclusive

33
Q

PRIVILEGES AND OOTHER POLICY EXCLUSIONS

A
34
Q

Public Policy Exclusions

Subsequent Remedial Measures

A

Evidence that something was fixed after an accident.

NOT ADMISSIBLE to show negligence.

35
Q

Public Policy Exclusions

EXCEPTION to Subsequent Remedial Measures

A

Admissible to show OWNERSHIP or CONTROL

36
Q

Public Policy Exclusions

Liability Insurance

A

NOT admissible to show negligence.
MAY be admissible to show bias.

37
Q

Public Policy Exclusions

Compromise/Settlement Offer

A

NOT admissible. But there must be a LEGAL DISPUTE for the privilege to exist (not an offer to pay $10k after a car accident).

38
Q

Public Policy Exclusions

Compromise/Settlement Offer COUPLED WITH an ADMISSION

A

It does not matter. The WHOLE statement is inadmissible.

39
Q

Public Policy Exclusions

Offer to Pay Medical Expenses

A

NOT admissible.

40
Q

Public Policy Exclusions

Offer to Pay Medical Expenses COUPLED WITH an ADMISSION

A

Severed –> the ADMISSION is ADMISSIBLE.

41
Q

Public Policy Exclusions

Plea Negotiation Statements

A

Almost always NOT admissible.

Only admissible if COUPLED WITH an admissible statement and FAIR

42
Q

Public Policy Exclusions

Past Sexual Conduct of Victmi

A

Not admissible, unless

Criminal Case + consent, protects constitutional rights, or the source of any physical evidence

Civil Case + ONLY if probative>prej

43
Q

WRITINGS, RECORDINGS, AND PHOTOGRAPHS

A
44
Q

Best Evidence Rule

What is it?

What is the exception?

A

The Best Evidence is the original.

The Best Evidence Rule does not apply to objects.

Exception to BER –> original item is lost or destroyed, you may use a copy if it AUTHENTICATED (no evidence of tampering)

45
Q

Best Evidence Rule

When does it apply?

A

(1) To prove the contents of a document

(2) To prove the testimony being given

46
Q

Rule of Completeness

What is it?

A

When admitting a portion, the whole document may be admitted for fairness (so long as it is relevant).

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