Evidence Flashcards
What is relevance?
Evidence is relevant if these two things are true, ie
1. the evidence has to be material
2. The evidence has some tendency to make the evidence more or less likely shifted (Probative)
Unfair prejudice
It will make the jury decide on emotions
Impeachment
Impeachment is discrediting a witness’ testimony,
When offered to impeach it means you cannot trust what the witness is saying.
Any party may impeach a witness even your own witness.
Hearsay
An out-of-court statement made to prove the truth of the matter asserted.
Methods of impeachment
By cross-examination
or Extrinsic Evidence (Calling other witnesses)
A foundation must be laid
When is extrinsic evidence admissible?
Extrinsic evidence of the defendant’s other crimes or misconduct is inadmissible if such evidence is offered solely to show that the defendant is violent and therefore has a criminal disposition.
However, evidence of other crimes or misconduct is admissible if these acts are relevant to some issue other than the defendant’s character or disposition to commit the crime charged (e.g., to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident) whenever these issues are relevant.
Prior act of sexual misconduct is admissible in a sexual misconduct case.
In order for a defendant’s prior misconduct to be admissible for some relevant non-character purpose (motive, intent, etc.), there must be:
Sufficient evidence to support a jury finding that the defendant committed the prior misconduct.
Under Federal Rule 404(b), independently relevant uncharged misconduct by the defendant will be admissible, without a preliminary ruling, as long as there is sufficient evidence to support a jury finding that the defendant committed the prior act.
Which statement is true regarding a memorandum used at trial to refresh a witness’s present recollection?
It may be offered into evidence by the adverse party.
Under FRC 612,
whenever a witness has used writing to refresh her memory on the stand, an adverse party is entitled to have the writing produced at trial, to inspect it, to cross-examine the witness thereon, and to introduce it into evidence.
It also does not need to be authenticated.
The “recorded recollection” exception to the hearsay rule allows the offering party to:
Introduce a memorandum into evidence by reading it aloud.
Under the “recorded recollection” exception to the hearsay rule (also called “past recollection recorded”), where a witness’s memory of an event cannot be revived by reviewing a memorandum or other record made by the witness at or near the time of the event, a party may introduce the record into evidence by reading it aloud to the jury.
Statements by an opposing party (also known as “admissions by a party-opponent”) are considered nonhearsay under the Federal Rules. For a party’s statement or act to qualify as an opposing party’s statement, it must __________.
be attributable to a party and offered against that party
Under the Federal Rules, a statement by an opposing party offered for the truth of the matter asserted is:
Hearsay
It is an admission by a party-opponent”
Adoptive Statement requirement
(i) the party must have heard and understood the statement; (ii) the party must have been physically and mentally capable of denying the statement; and (iii)A reasonable person would have denied the accusation under the same circumstances
Under the Federal Rules, a party may be held vicariously responsible for the statement of someone with any of the following relationships to the party:
A statement may be attributable to an opposing party without being made by that party in an individual capacity. A party can be held vicariously liable for statements made by people with the following relationships to the party:
Authorized Spokesperson: The statement of a person authorized by a party to speak on its behalf (e.g., statement by company’s press agent) can be admitted against the party.
Principal-Agent: Statements by an agent concerning any matter within the scope of her agency or employment, made during the existence of the agency or employment relationship, are admissible against the principal. Therefore, if a truck driver-employee has an accident while on the job and admits that she was negligent, this statement may be introduced against her employer even if she was not authorized to speak for the employer.
Partners: After a partnership is shown to exist, a statement of one partner, relating to matters within the scope of the partnership business, is binding upon her co-partners since, as to such matters, each partner is deemed the agent of the others.
Co-Conspirators: The Supreme Court has held that statements of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime or a civil wrong, at a time when the declarant was participating in the conspiracy, are admissible against co-conspirators.
To prove a prior inconsistent statement by extrinsic evidence
certain requirements must first be met. It is not enough that the prior inconsistent statement cast doubt on the witness’s credibility. Instead, the statement must be relevant to the case; i.e., it cannot be a collateral matter. Furthermore, the witness generally must be given an opportunity to explain or deny her statement at some point during trial, and the adverse party must be given an opportunity to examine the witness about the statement.
Spousal Immunity
Applies only in criminal cases for matters that took place before or during the marriage.
Hearsay Exceptions
- Former Testimony- made under oath - the party had motive and opportunity to develop testimony.
- Statement against interest
- Dying declaration - Statement made while the party had a reasonable belief that death was imminent. Declarant must not die
- Statement made by a family member
- Statement made against party procuring declarant’s unavailability- a statement made by a party whose’s disappearance was caused by the defendant.
Excited Utterance (!)
The statement must relate to a startling event
Made while under the stress of excitement from the event.
Present Sense Impression
A statement made to describe an event or condition, the event or condition need not be starting
It must be made while or immediately after perceiving the event or condition.
The present state of Mind
Statement of then state of mind, emotion or sensation.
Present bodily condition
Spontaneous declaration of Physical symptoms
Statement for medical diagnosis or treatment
Stm of past or present physical condition or the cause of the condition made for medical diagnosis or treatment.
Public Policy exclusion
Certain evidence is excluded because public policy favors the behavior involved.
Liability insurance
Evidence of a party’s insurance does not show proof or lack of is now admissible of the party’s negligence.
It may be admissible to show
1. Prove ownership, or control if there is a dispute
2. Impeach witness to show their bias
3. Admission of liability.
