Evidence Flashcards
Requirements for lay witness testimony
- Rationally based on the witness’s perception
- Helpful to a clear understanding of the witness’s testimony or helpful to the determination of a fact in issue
- Not based on expert knowledge
Daubert factors
1) Theory/method has been tested
2) Subject to peer review/ publication
3) Known/potential error rate
4) Existence/maintenance of standards controlling its operation
5) Generally accepted
Requirements for expert testimony
1) Witness qualified as an expert
2) Witness at least reasonably certain about their opinion
3) SM is one where scientific/technical/specialized knowledge would be helpful to jury
4) Based on sufficient facts or data
5) Relies on reliable methodology reliably applied.
Authentication
A writing must be authenticated by proof (e.g., recognition testimony or chain of custody) that the writing is what the proponent claims it is. The proof must be sufficient to support a jury finding of genuineness.
Oral statements must be authenticated in cases where the identity of the speaker must be shown to make the statement relevant.
Best Evidence Rule
In terms of proving the terms of a writing (recording, photograph, video, or X-ray), where the terms are material, the original must be produced.
The FRE will permit the use of an exact copy of an original, such as a photocopy, to the same extent as an original, so long as no genuine question of authenticity is raised.
Secondary evidence of the contents, such as handwritten copies, notes, or oral testimony, is admissible only if the proponent provides a satisfactory excuse for the original’s absence.
Past recollection recorded hearsay exception
- Showing record to witness failed to refresh their memory
- Witness had PK of facts when record was made
- Record was made/adopted by witness when fresh in witness’s mind
- Witness can vouch for accuracy of the record
The past recollection recorded can be read into evidence and heard by the jury, but not received as an exhibit unless offered by the adverse party.
Relevance
Logically relevant: has any tendency to prove/disprove a [disputed] fact of consequence
Legally relevant: court has discretion to exclude relevant evidence if its probative value is substantially outweighed by the risk of unfair prejudice, confusion, delay, etc. (FRE 403/ CEC 352)
Leading questions
Generally only allowed on cross
Allowed on direct if:
1) preliminary matter
2) witness needs help responding
3) witness hostile/adverse party
Scope of CX
- Scope of direct
- Impeachment
hearsay exceptions that require declarant to be unavailable
- decl against interest
- dying declarations
- former testimony
- personal/family history
hearsay exemptions
prior statements by a testifying witness
-prior inconsistent statement under oath
-prior consistent statement to rehabilitate
-prior statement of ID
PO statements
-party
-vicarious
-adoptive
-co-conspirator
Business records exception
1) Record prepared as part of regularly conducted business activities (not for purposes of litigation)
2) At/near time of event
3) By someone with a business duty to make such entries
4) By someone with PK or transmitted to preparer by someone with PK
Authentication:
Custodian of record (not necessarily the author, but someone in the business who is knowledgeable about the business’s recordkeeping) testifies (or signs a certificate saying) that the record meets the elements of the business records exception.
Public records exception
Writing must have been made by and within scope of duty of the public EE and must have been made at or near time of event. The following types of records are admissible:
1) Records about agency activities/policies
2) Factual matters observed pursuant to legal duty (but not including police observations in criminal cases)
3) In civil actions and against the gov’t in criminal cases—but not against a criminal defendant—factual findings from a legally authorized investigation (and the business records exception cannot be used as a back door).
statement against interest
Requirements:
1) Declarant now unavailable
2) Statement against declarant’s pecuniary, proprietary, or penal interest when made, such that a reasonable person in declarant’s position would have made it only if they believed it to be true
3) Declarant must have had PK of the facts
4) Declarant must have been aware that the statement was against their interest when they made it
In criminal cases, statements against penal interest must be corroborated.
The CA exception is broader in 2 ways:
- No corroboration requirement for statements against penal interest
- Also applies to statements against declarant’s social interest
Agent/EE vicarious statement
1) Concerned matter within scope of their agency/employment
2) Made during the existence of the agency/employment relationship
